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•I ".» • 


American Decisions 


The Courts of the Several States 


THE YEAR 1869. 


By A,-C. freeman, 

*i I 



•> • • * • 

m '• * ^ ^ 

BAK'TRAtcreVO . 




• <*. • 

t "♦ 

• V 

I » 

I ?^J7^ 


9% 4. 

!• All at OaagMM. la 4ba yMt U 

L. BAaoBorr * oompavt. 


American Decisions- 


The cases re-reported in this Volume will be found 
originally reported in the following State Reports: 

Omo Stats Rxpobts. Tola. 7, 8. 18BT. 

PurasTLTAioA State Rkpobts. • - - Vols. 28, 39, 18B7. 

Rbodb l8LA2n> RcFOBTS. - • • - - Vols. 4, 6. 18S7. 
BicHABDSoy'8 S. CiBOLniA Eq. Bifobtb. Tols. 8, 9. 1866, 18B7. 
RicHARDBo^f's S. Cabouna Law Bdostb. Tols. 10, 11. 1866, 1867. 

Breed's Tenksbsee Refobts. - - • - Vols. 4, 6. 1867. 

Texas Repoets. Tob. 18, 19, SO. 1867. 

Vbbhokt Rbpobts. Vol. 29. 1867. 

Obattan's Yiboixu REKwn. • • • - Tol. 18. 1867. 

Wmoovsnr Rbpobts. Tol. 6. 1868. 

Alabama Rbpobts. Tols. 81, S2, 88. 1868. 

Abkabbas Rbpobts. Vol. 19. 1868. 

CMjmmMU Rbpobts. Vols. 9. 10, 11. 186a 






Btato Beporti f In par— th a w t. Mid tlM noailwr of tte Aaarlcui DmWow te wUek lk*f 

ftf* TO-rcpofftod to in iMiTjr-teosd l«Ct»r. 

AlABAiLA— (1 Miner) 12; (I Stew.) 18; (2 Stew.) 19, 90; (S Staw.) 90, 21; 

(1 Stew. & P.) 21; (I. 2, 3 8tcw. & P.) 23; (4, 5Stew. ft P.) M; (6 Stew. 

& P., and 1 Porter) 26; ( 1 , 2 Porter) 27; (3, 4 Portor) 29; (4^ 5, 6 Porter) 

30; (6, 7 Porter) 31; (S, 9 Porter) 33; (1) 34, 35; (2, 8) 36; (S» 4) 37 

(4, 5) 39; (0, 7) 41; (7, 8) 42; (9, 10) 44; (11, 12) 46; (13, 14, 15) 46 

(16, 16) 50; (17, IS) 52; (IS, 10) 54; (20. 21) 56; (22, 23) 58; (24, 25) 60 

(28, 27) 62; (15, 16) 63; (2S. 29) 65; (29, 30, 31) 68; (31, SS^ S3) 7a 
A«KAWSAS-(1. 2) 33; (2) 35; (3) 36; (4) 37, 38; (5) 39, 41; (6) 42; (7, 8) 

44, 46; (8, 9) 47; (9, 10) 50; (10, 11) 52; (11, 12) 54; (12, 13) 56; (13, 

14) 58; (14. 15) 60; (17, 18) 65; (18, 19) 68; (19) 70. 
CAUfORMiA— (1) 52, 54; (2) 66; (3) 58; (4) 60; (5) 68; (6) 68; (7. 8) 68; 

(9. 10,11)70. 
CoHKBcnooT-HEirby, and 1, 2 Boot) 1; (1, 2 Day) 2; (3 Day) 8; (4 Day) 4; 

(5 Day) 5; (1) 6, 7; (2) 7; (3) 8; (4) 10; (6) 13; (6) 16; (7) 18; (8) 20; 

(9) 21; (10) 25, 26, 27; (11) 27, 29; (12) 30, 31; (18) 33; (18, 14) 35; 

(14)36; (15) 38, 39; (16) 41; (17, 18) 44; (18)46; (19) 48; (19, 20) 50; 

(20) 52; (21) 54; (21, 22) 56; (22) 58; (23) 60; (23, 24) 63; (25) 65; 

(25. 26) 6a 
DiLAWARS— (1 Harr.) 23, 25, 26, 27; (2 Harr.) 29, 30, 31. 33; (4 Harr.) 

42, 44; (5 Harr.) 48, 60; (1 Houst.) 63, 6a 
Florida— (1) 44, 46; (2) 48, 50; (3) 52; (4) 54, 56; (5) 58; (6) 63, 65; 

Oboroia— (1 T. U. P. Charlton) 4; (1) 44; (2, .3) 46; (4, 5) 48; (6, 7) 50; (8. 9) 

52; (9. 10) 54; (11, 12) 56; (12. 13. 14) 38; \]5, U^) 60; (17, 18. 19) 63; 

(19, 20) 65; (21, 22, 23) 68. 
ItUNOis— (Breese) 2; (1 Scam.) 25. 26, 27, 28, 29, 30, 32, 33; (2 Scam.) 

33, 35; (3 Scam.) 36; (3, 4 Scam.) 38: (4 Scam.) 39; (1 Oilm.) 41; 

(2Gilm.)43; (3Gilm.)44; (4Gilm.)46: (:>Gilm.) 48, 50; (11)50; (11. 

12)52; (12.13)54; (13.14)56; (14,15)58; (13)60; (1G)61: (16,17)63; 

(17. 18) 65; (18. 19) 68 


Ubuva^I BlaekL) If; (8 Blaokl) 18; aO. 21; (3BUck(.) 25, 26; (4 Bteoktl 
28, 29, 30, 32; (5 Blaokf.) 32, 33, 35, 36; (0 Dlacki.) 36, 38, 39; 
a Blaokf.) 39, 41, 43; (8 Bkekf.) 44, 46; (I) 48, 50; (2) 52; (2, 8) 54| 
(3) 56; (4) 58; (5, 6) 61; (6, 7) 63; (7, 8) .65; (9, 10) 68. 

I0W4— (Morris) 39, 41, 43; (1 O. OraeDe) #$, 48, 50; (2 O. Greene) 52^ 
(3 Q. Qceene) 54, 56; (4 0. Oreeoe) 61; (I, 2) 63; (2) 65; (3, 4) 66| 
(4, 5) 6a 

KsiTUOKY— (1 Sueed) 2; (Uardio) 3; (I Bibb) 4; (2 Bibb) 4, 5; (3 Bibb) «! 
(4 Bibb) 7; (1 A. K. MarBh.) 10; (2 A. K. Marsii., an>l Utt Sel. Gba.) 12| 
<3 A. K. Marsh., and 1, 2 Litt.) 13; (3, 4 LitL) 14; (I, 2 Mon., and 6 
litt.) 15: (3, 4 Mod.) 16; (5, 6 Mud.) 17; (7 Mod.) 18; (1, 2, 3 J. J. 
Marsh.) 19; (3, 4, 6 J. J. Marsh.) 20; (5, G J. J. Marsh.) 22; (7 J. J. 
Marsh.) 22, 23; (1 Dana) 25; (2 Dana) 26; (3 Daoa) 28; (4 Dana) 29| 
(6 DMia) 30; (6, 7 Dana) 32; (3, Dana) 33; (9 Dana, and 1 B. Moo.) 
35; (1, 2 B. Mon.) 36; (2, 3 B. Mon.) 38; (3, 4 B. Mon.) 39; (4, 6 K 
Moo.) 41; (5, B. Moo.) 43; (6 B Mon.) 44; (7 a Mon.) 45; (7, 8 K 
Mod.) 46; (8, 9 B. Mon.) 48; (9, 10 B. Mon.) 50; (10, 11 B. Mob.) 83| 
(IS a Mon.) 54; (13 B. Mon.) 56; (14 a Mon.) 58; (14, 16 a Mon.) 61| 
(1ft, 16 a Mon.) 63; (17 a Mon.) 66; (18 a Mon.) 68. 

LovnuKA--(l» 2, 3 Mart.) 5; (3, 4 Biari.) 6; (5, 6, 7 Mart.) 12; (8, 9, 10, 11, 
12 Mart) 13; (1, 2 Mart, N. S.) 14; (3 Mart. N. S.) 15; (4, 6 Mart, 
N. a) 16; (6 Mart, N. S.) 17; (7 Mart, N. 8.) 18; (8 Mart., N. S,) 19, 
»l (1. 2) 20; (2, 8) 22; (3. 4) 28; (6, 6) 25; (6, 7) 26; (8) 28; (9, 10) 29; 
(11) 30; (12)32; (13, 14) 33; (15, 16) 35; (17. 18, 19) 36; (1 Rob.) 36; 
(1, 2, 3 Bob.) 38; (4, 6, 6 Bob.) 39; (6, 7, 8, 9 Rob.) 41; (10, 11. 
IS Bob.) 43; (1 Ann.)* 45; (2 Ann.) 46; (3 Ann.) 48; (4 Ann.) 50; 
(5 Aan.) 52; (6 Ann.) 54; (7 Ann.) 56; (8 Akin.) 58; (9 Ann.) 61; (10 
Aan.) 63; (11 Ann.) 66; (12 Ann.) 68. 

llmnMl OrsenL) 10: (2 GhMoL) 11; (3 Orwnl.) 14; (4 OfwnL) 16; 
(5 Gvenl.) 17; (6 GraenL) 19; (6, 7 Oreenl.) 20; (7, 8 QreenL) 22; (8» 9 
GmoL) 23; (10 Me.) 25; (11) 25, 26; (12) 28; (13) 29; (14) 30, 31; 
(16) 82; (15, 16) 33; (17) 35; (18. 19) 36; (20) 37; (21, 22)38; (22, 23) 
39; (23, 24) 41; (25) 43; (26) 45; (26, 27) 46; (28, 29) 48; (29, 30, 31) 
80; (31, 32) 52; (32, 33) 54; (34, 35) 56; (35, 36, 37) 58; (37) 59; (38) 61; 
(39, 40) 63; (41, 42) 66; (4.3, 44) 69. 

Martlakd— (1. 2. 3, 4 II. k M.) 1; (1 II. & J.) 2; (2 H. & J.) 3: (3 II. & J.) 
5, 6; (4 H. & J.)7: (oil. & J.) 9; (6 K. &J.)14; (7 II. ft. I.) 16: (1 Bl. 
Ch.) 17, 18: (I U i^ O.) 18; (1, 2 Gill & J.) 19; (2 hi. Ch.. and 2, 3 O. 
A J.) 20; (3 Bl. Ch., oud 3 O. k J.) 22; (4, 5 G. k J.) 23: (5, U G. A J.) 
25; (6, 7 G. & J.) 26; (7 G. k J.) 28; (8 G. k J.) 29:. (9 G. k J.) 31; 
(10 G. k J.) 32; (11 G. k J.) 33, 35, 37; (12 G. k J.) 38; (1 Gill) 39; 
(2 Gill) 41; (3 Gill) 43; (4 Gill) 45; (5, 6 Gill) 46; (6, 7 Gill) 48; (8 Gill) 
50; (9 Gill) 52; (1) 54; (2, 8) 56; (4, 5) 59; (5, 6, 7) 61; (S) 63; (9) 66; 

ManA0Hr8lTT»— (Qnincy) 1; (1) 2; (2, 8, 4) 3; (6, 6) 4;. (7. 8) 5; (9, 10. 1 1) 6; 
(12. 13, 14)7; (16. 16)8; (17)9; (1 Pick.)ll; (2 Pick.) 13; (3 Pick,) 15; 
(4, 6 Pick.) 16; (6 Pick.) 17; (7, 8, 9 Pick.) 19; (9, 10 Pick.) 20; (1 1 12 
Pick.) 22; (12, 13 Pick.) 24; (13, 14, 15 Pick.) 25; ,15, 16 Pick.) 26; 
(16, 17 Pick.) 28; (18 Pick.) 29; (19 Pick.) 31; (20 Pick.) 32; (22 Pick.) 
33; (23 Pick.) 34; (24 Pick., and 1. 2 Met) 35; (2, 8 Met) 37; (3, 4. 6 
Met) 38; (5. 6, 7 Met 39; (7, 8 Met. ) 4 1; (9, 10 Met) 43; (1 1. 12 Met ) 


40| (U;U1UL)46; (I,2Ciisli.)48; A4(>Mk)50} 9Ckih.)SX; (i^t 
0HiL)52$ (•0HiL)53; (7, 8 Ouh.) M; <90HiL)54.57; (100HiL)9yt 
01, 12 OMk) 99; (1. 2 Gray) 61; (S Ony) 63; (4 Qnj) 64; (i^ % 7 
0«iij)^(8»^ 10Qtm7)69. 

IfnoBAV— (1 Dioag.) 40^ 41; (2 Doag.) 43^ 46^ 47; (1)48^ 51, 63; (2)8«. 
67; (a; 8) 89; (3) 61; <3) 64; (4) 66; (4) 69. 

MmraMCA— (1) 55; 61; 66; 69. 

Mnnnm— (Walkor) 12; (1 How.) 36^ 28^ 29, 61; (2 How.) 38; (3, 4 How.) 
94; (4»5 How.) 35; (5 How.) 37; (6 How.) 38; (7 How., ud 1 8. 4 M.) 
40; (S; 8& & M.) 41; (4, 6 & & M.) 43; (8, 8, 7 & 4 M.) 45; (8. 9 S. 
ftM.)47; (9, 10 S. ft M.) 48; (118. ftM.)49; (19^ IS & 4 M.) 51; (18, 
14&4M.)53; (28)55,57; (24,28)57; (28,28)59; (27.28)61; (28^ 
28, 30) 64; (31, 82) 66; (33, 84) 69. 

Umootu-(1) 13, 14; (2) 22; (3) 22, 23, 25, 36; (4) 28^ 29, 31; (8) 31, 32; 
(8) 34, 35; (7) 37. 38; (8) 40. 41; (9) 43; (9, 10) 45: (10, 11) 47; (11, 
12) 49; (12) 51; (13) 53; (14, 15) 55; (18, 18, 17) 57; (17, 18, 19) 59; 
(19,20)61; (20, 21, 22) 64; (22, 23. 24) 66; (24,28,28)69. 
L Miw Hamf8HIRS~(1) 8; (2) 9; (3) 14; (4) 17; (6) 20, 22; (8) 23, 85, 26; 

(7) 26, 28; (8) 28. 29, 31; (9) 31, 32; (10) 34; (11) 35; (12) 87; (18) 38; 
(13, 14) 40; (15, IG) 41; (16, 17) 43; (18) 45, 47; (19) 49; (19, 20) 51; 
(21, 22) 53; (22. 23. 24) 55; (24. 25, 26) 57; (26, 27, 28) 59; (28, 
28) 61; (30, 31, 32) 64; (33, 31) 66; (34, 35) 69. 

Niw JKBttT-HCoze) 1; (I Pen.) 2; (2 Pen.) 4; (1 South.) 7; (2 South.) 8; 
(1 Hdsk) 10; (2 Ualst) 11; (3 Ualat.) 14; (4 Halst) 17; (6 Hoist.) 18; 
(8 Hakt.) 19, 20; (1 Sox.. 7 Ualst) 21; (1 Gr., 1 Sox., 7 Holot.) 22; 
(1 Sox., 1 Gr.) 23; (1, 2Qr.) 25; (2 Or.) 27; (3Gr.) 28^ 29; (2 Gr. Ch.) 
29; (1 Hon-., 3 Gr. Ch.) 31; (1 Uorr., 1 Gr. Ch.) 32; (2 Horr., 1 Gr. Ch.) 
34; (1 Gr. Ch.. 2. 3 Uorr.) 35; (3 Horr.) 87; (3 Gr. Ch., 1 Spoaoor, 3 ft 
4 Horr.) 38; (1 Sponoer. 3Gr. Ch.) 40; (3Gr. Ch.) 41; (1 Spoooer, 3Gr. 
Ch., 1 Hobt. Ch.) 43; (1 Sponoer, 1 Holrt. Ch.) 45; (I Zoh.. 2 HoUt. 
Ch.) 47; (2 Zoh.. 3 Holtt Ch.) 51; (2, 3 Zoh.) 53; (3 Zoh.. 4 Hobt. Ch.) 
55; (3 Zoh.. 1 Stock. Ch.) 57; (4 Zoh., 1 Stock. Ch.) 59; (4 Zoh.) 61; 
(4 Zoh., 1 Dutch., 1.2, 3 Stock. Ch.) 64; (2. 3 Stock. Ch.) 66; (1 Dntch.) 
67; (2 Dutch.. 8 Stock. Ch.) 69. 
» Hiw YoBK~(l, 2 Johns. Om.) 1; (3 Juhoo. Coo., 1, 2 Coi. Cos., 1. 2, 3 Coi.) 

2; (1, 2, 3 Johns. ) 3; (4. 5 Johns.) 4; (6, 7, S Johns.) 5; (9, 10, 1 1 Johns.) 
6; (12, 13. 14 Johns.. 1. 2 Johns. Ch.) 7; (15, 16, 17 Johns., 3, 4 Johns. 
Ch.) 8; (18 Johns., 5 Juhns. Ch.) 9; (19 Johns.. Johns. Ch.) 10; (20 
Johns., 7 Johns. Ch.) 11; (i Cow.) 13; (Hop. Ch.. and 2 Cow.) 14; (3, 4, 
5Cow.) 15; (6Cow.) 16; (7 Cow.) 17; (8, 9Cow.) 18; (1 Pai., 1, 2 Wend.) 
19; (2, 3 Wend.) 20; (i Pa;., 4, 5, Wood.) 21; (2, 3 Poi., 6, 7, 8 Wend.) 
22; (3 Psi.) 23, 24; (S, 9. 10 WencL) 24; (4 Pai., 10, 11 Wend.) 25; 
(4 PaL, 11, 12. 13 Wend.) 27; (o Pai., 13. 14 Wend.) 28; (6 Pai.) 29; 
(16. 18 Wend.) 30; (G, 7 I*ai., 17, 18 Wend.) 31; (7 Pai., 10, 20 Wend.) 
32; (7, 8 Pai., 21, 22 Wend.) 34; (23, 24, 25 Wend., 8 Pai.) 35; (25, 26 
Wend., 1, 2 Hill, 9 PaL) 37; (9 PaL, 2. 3 HUl) 38; (10 PaL, 4, 8, 6 Hill) 
40; (6 mil) 41; (7 Uill, 10, 11 PaL) 42; (1. 2 Denio, 11 F^, 1 Barb. 
Ch.) 43; (1. 2 Barb. Ch., 3 Denio) 45; (4, 5 Denio, 2 Barh. Ch.) 47; 
(3 Bsrb. Ql. A Denio) 49; (I, 2) 49; (2. 3) 51; (3, 4) 53; (4, 5, 6) 55; 
(8, 7) 57; (7, 8, 9) 59; (9, 10) 61; (11. 12) 62; (12, 13) 64; (13. 14) 67; 

14 Schedule. 

KiORTH Gabolima— <1 Mftrt, 1 Hayw., 1 Tftyl.) 1; (2 Hayw.. 1 Oonf.) t\ 
(1 Marph.)3,4;(2Marph.)5; (l,2IiawBep.)6; (IT. R.)7; (SMorph.. 

1 Hawlu) 9; (2 Hawks) U; (3 Hawks) 14; (4 Hawks) 15; (1 Dev.) 17| 
•(21>ev.) 18, 21; (1 Der. Eq.) 18; (3 DeT.» 2 Dev. Eq.) 22, 24; (4 Dtv., 

2 Dev. Eq.) 25; (4 Dev., 2 Dev. Eq., 1 D. & B., 1 D. & B. Eq.) 27; (1, 2 
D. ft B., 1 D. & B. Eq.) 28, 30; (1 D. & B. Eq., 2 D. & B.) 31; (3, 4 D. 
ft B., 2 D. ft B. Eq.) 32; (4 D. ft B., 2 D. ft B. Eq.) 34; (I Ired.) 35» 
(1 Ired. Eq.) 36; (2 Ired.) 37; (2, 3 Ired., 2 Ired. Eq.) 38; (3, 4 Ired.) 
2, 3 Ired. Eq.) 40; (4, 5 Ired.. 3 Ired. Eq.) 42; (.<5, 6 Ired., 3, 4 Ired. Eq.) 
44; (6, 7 Ired., 4 Ired. Ch.) 45; (7, 8 Ired., 4, 5 Ired. Eq.) 47; (8, 9 tred., 
6 Ired. Eq.) 40; (9, 10, 11 Ired., 6 Ired. Eq.) 51; (11 Ired., 7 Ired. Eq.) 
53; (12, 13 Ired., 8 Ired. Eq.) 55; (13 Ired., Sired. Eq., BusbeeL., Bus- 
bee Eq.) 57; (Basbee L., 1 Jones L., Basbee Eq., 1 Jones Eq.) 59; (1, 2 
Jones L., 1, 2 Jones Eq.) 62; (2 Jones Eq., 2, 3 Jones L.) 64; (3, 4 Jones 
L., 2, 3 Jones Eq.) 67; (3 Jones Eq., 4, 5 Jones L.) 69. 

Ohio-(1) 13; (2) 15; (3) 17; (4) 19, 20; (6) 22, 24; (6) 25, 27; (7) 28. 80; 
(8) 31, 32; (9) 34; (10) 36; (11) 37, 38; (12) 40; (13) 42; (14, 15) 45; 
(16) 47; (17) 49: (18) 51; (19) 53; (20) 55; (1, 2 Ohio St) 59; (3, 4 
Ohio St.) 62; (4, 6 Ohio St) 64; (6, 6 Ohio St) 67; (7, 8 Ohio St.) 70. 

O&iaoir— (1) 62. 

PxNNSTLTANiA— (1 Add., 1, 2, 3 DslL, 1, 2 Teates) 1; (1 Bin., 3, 4 Yeates) 
2; (2 Bin.) 4; (3, 4 Bin.) 5; (5, 6 Bin.) 6; (1, 2S. ft R.) 7; (3, 4 S. ft R.) 8; 
(5, 6 S. ft R.) 9; (7 S. ft R.) 10; (8, 9 S. ft R.) 11; (10 8. ft R.) 13; (11; 
12 S. ft R.) 14; (13 S. ft R.) 15; (14, 15, 16 8. ft R.) 16; (17 S. ft R.) 17, 
(1 Rawle) 18; (2 Rawle) 19; (2 Rawle, 1, 2 P. ft W.) 21; (3 Rawle, 2, 3 
P. ft W.) 23, 24; (4 Rawle, 1, 2 Watts) 26; (4 Rawle, 2, 3 Watts) 27; 
(5 Rawle, 4 Watts) 28; (1 Whart ) 29; (1, 2Whart., 6 Watts) 30; (6 Watts, 

3 Whart.) 31; (7 Watts) 32; (4 Whart) 33; (8, 9 Watts, 4, 5 Whart.) 
34; (9, 10 Watts, 6 Whart.) 36; (6 Whart., 1, 2, 3 W. ft S.) 37; (3 W. 
ft S.) 38; (3, 4, 5 W. ft S.) 39; (5, 6 W. ft S.) 40; a 8, 9 W. ft S.) 42; 
(1, 2 Pa. St) 44; (2, 3. 4. 6) 45; (6, 6, 7) 47; (7, 8, 9, 10) 49; (10^ 11, 12) 
51: (13, 14, 15) 53; (16, 17, 18) 55; (18, 19, 20) 57; (20, 21) 50; (22) 60^ 
(22, 23, 24) 62; (24, 25) 64; (26, 27) 67; (28, 29) 7a 

liuoDB Island— (1) ^% 36, 51, 53; (2) 55, 57, 60; (3) 62; (3, 4) 67; (4, 

South Gaboliva— (1, 2 Bay, 1 Desaa. Eq.) 1; 2 Desan. Eq., 1 Brer.) 2; 
(2 BrsT.) 3; (3 Desaa. Eq., 2 Brev.) 4; (3 Desan. Eq., 3 Brev.) 5$ 
(4 Desan. Eq., 8 Brev.) 6; (I N. ft M.) 9; (I N. ft M., I MoO.) 10; (I, 2 
MiU) 12; (2 McC.) 13; (1 Harp. Eq.) 14; (3 McC.) 15; (1, 2 MoO. Cb.> 
16; (4 McC.) 17; (1 Harp.) 18; (1 fiai.) 19; (1, 2 Bai., 1 BaL Eq.) 21; 
(2 Bai., 1 Bai. Eq., 1 Rich. Eq.) 23; (I Rich. Eq.) 24; (1 Hill, 1 Hill Ch.> 
26; (J! Hill, 1, 2 Hill Ch.) 27; (2 Hill Ch.) 29; (3 Hill, I Riley, 1 RUty 
Gh., 2 HiU Ch.) 30; (Dudley) 31; (Rice) 33; (Chores) 34; (MoM.) 36r 
(1 MoM. Eq., 2 MoM.) 37; (2 MoM., 1 Spears Eq.) 39; (1 Spears, 1 Spsm 
Eq.) 40, 42; (I Rich. Eq., 1 Rich., 2 Spears) 42; (1, 2 Bioh., 1, 2 Bkh. 
Eq.) 44; (2, 3 Rioh.) 45; (2 Rioh. Eq.) 46; (1 Strob. Eq., 1, 2 SIroh.) 47; 
(2, 3 Strob., 2 Strob. Eq.) 49; (3, 4 Strob., 3 Strob. Eq.) 81; (4, 6 Strob., 

4 Rioh., 4 Strob. Eq.) 53; (3, 4 Rioh. Eq., 4, 5, 6 Rioh.) 55; (4 Rioh. Bq., 
6 Rioh.) 57; (5, 6 Rioh. Eq., 6 Rioh.) 60; (6, 7 Rioh. Eq., 7, 8 Rich.) 62; 
a 8 Rioh. Eq., 8, 9 Rich. L.) 64; (9, 10 Rioh. L.) 67; (8» 9 Bloh. Eq.» 
10^ 11 Bioh. L.) 7a 


SCU£DUL£. 15 

TteKUttii-Hl Orert.) 3; (1 Cooke. 2 Overt.) 5; (3. 4, 6 Eaj,) 9; (Pack) 14; 
<M. dL Y.) 17; (1, 2, 3 Yarg.) 24; (4. 5 Yerg.) 26; (6. 7 Yerg.) 27; (8 Yerg.) 
29; (8, 10 Yiwg.) aO; (10 Yerg.) 31; (1 Meiga) 33; (1 Homph.) 34.: 
(2 Hvmph.) 36, 37; (3 Hnmph.) 39; (4 Humph.) 40; (5 Homph.) 42; 
(0 Humph.) 44; (7 Humph.) 46; (8 Hamph.) 47; (8, 9 Humph.) 49; 
(0, 10 Humph.) 51; (10, 11 Hunph.) S3; (1 Swen) 55, 57; (2 Swan) 58; 
(1 Sneed) 60; (1, 2 Sneed) 62; (2 Sneed) 64; (3 Sneed) 65; (3, 4 Sneed) 67: 
(4, 5 Sneed) 7a 

ftaA»-<l)4€; (2)«; W«; (i, 5) 61; (5, «) 55; (6) 66; a» 5k « »; 0. 10. 

11) 60; (11, 12, IS) 63; (11, 14. 15) 65; (15, 17. 18) 67; {1% !«, ») 7a 
VnuioiiT— (1 N. Chip., 1 D. Chipb) 1; (1, 2 Tyler) 2; (1 D. GUp.) 6, 12; 

(1 Aik.. 2 D. Chip.) 15; (3 Aik.) 16; (1) 18; (2) 19, ^; (3) 21, 23; (4) 

28^ 24; (5) 26; (6) 27; (7)29; (8)30; (9)31; (10) 33; (11)34; (12)36; 

(13) 37; (14) 39; (16) 40; (16, 17) 42; (17, 18) 44; (18, 19) 46; (19) 47; 

(20) 49; (20, 21) 50; (21, 22) 52; (22, 23) 54; (23) 56; (24, 28) 58; (25, 

26) 60; (28, 27) 62; (27, 28) 65; (28, 29) 67; (29) 7a 
?Bai]riA— (1 Jeff:, 1, 2 Wadu, 1, 2 Okll) 1; (3,4, 5 CkU) 2; (1, 2 H. 4 M.. 

60aU)3; (4 H. 4 M., 1 Muni) 4; (1 Tn. (>•., 9^ 3 Mnnl) 5; (4Manf.) 

6; (5 Mnnf.) 7; (6 Muni) 8; (1 GSilm.) 9; (1 Band.) 10; (2 Band.) 14; 

(3,4Baad.)15; (5Band.)16; (6Band.)18; (1 Leigh) 19; (2L«gh)21; 

(8Laigh)33; (3, 4 Leigh) 24; (4 Leigh) 26; (5 Leigh) 27; (6 Le(gh) 29; 

(7 Leigli) 30; (8 Le<gh) 31; (9 Leigh) 33; (10 Leigh) 34; (11 Le(gh) 36; 

(11, 12 Leigh) 37; (1 Boh.) 39, 40; (2 Boh.) 40; (1 Orait) 42; (2 Gntt) 

44; (3 OraU.) 46; (4 Gimtt)47; (4, 6 Oraii.) 50; (5, 6 Gtatt.) 58; 

(7 OratL) 54; (7, 8 Oiatt.) 56; (9 Gfatt.) 58; (9, 10 Giatt.) 60| (11 

Oratk) 62; (12 GnU.) 65; (13 Gtatt.) 67; (13 Gfatt.) 70. 
ITiiooiiaiii— <1 Fin.) 39. 40, 42. 44; (2 Pin., 1 Chand.) 58; (2. 3 Fb.. % I 

(9mnd.)84; (3 Fin.) 56; (1. 2) 80; (3) 68; (4) 65; (5) 68; (6) ta 

American DEcisioNa 




Almramlwr t. Kennedy. • • •. .Adverse poueahiLM Tezae, 

AlezanderT. Miller's J&x9oatan, .Executums 18 Tens S14 

AlTeraon y. Jones and Bogardna. .Married women., . . 10 California 688 

Ames Y. Martin ExecuUont 6 Wiaoonain. 468 

.\mes T. Korman Husband and w\ft.. 4 Sneed 289 

^"^^^S^^S^^.V^-P^ 70hlo8t.t. 49 

BabbY. Harrison WUU 9 Richardson'sEq. 203 

Benk Y. Enotta Quaramtiif. 10 Richardson's L. 234 

Barnard y. Whipple... Pews 29 Vermont. 422 

Barto Y. Schmeok Indcfreemefiia, 28 Penn. State.... 145 

Baxter Y. Bnah Trover 4 29 Vermont 429 

Beaoh Y. Schoff. Walereowrse^ 28 Penn. State.... 122 

Beanpland y. McKesn. Estoppel 28 Penn. State. • . . 115 

BirdY. lisliros. ....Possession 90alifomia 617 

BittingerY. Baker..... TenasUaaiwitt 29 Penn. State ... . 164 

^I!wb^'^*^^^ ^ 

Blanohard Y. MoDoogal Statuieqf/rasids..., 6 Wisconsin 458 

iSiiss Y. Anderson Corporations. 31 AlabanuL 511 

Boars Y. Zaohariah ^cibioto{e4(;flMRte. • . 11 Oalifomia 780 

Brown ads. State Forgery 4 Rhode Island. . . 168 

Bryan Y. Hunt ContraeU. 4 Sneed 262 

Boms Y. Hamilton'^ AdniV. Probate eomU 83 AlahanuL 570 

BatteGknaleto.Oo. Y.yMi|^..ira<erooiirsef 11 Oalifomia 769 

Oanniehael Y. Book. Ageney 10 Richardson's L. 226 

Garr Y. Caldwell Mortgages 10 California 740 

^^^l^'^^^^^''^°'^^'\^^^c^c^ W2 

Cobb Y. Hall Vendor and vendee..^ Vermont 439 

GoleY.Cole Marriage 5 Sneed. 275 

""^^^^Sc^^-.l^"^ 'OhloSt^ «• 

4X. Dae. Vol. LZZ-A n 


■«Vli:^y HI 


OoiBiiiouw«altli ada. HmA 
GommoDwoalth ▼. OftrngOM 

OoDftBt ▼. Cooaat 

Ooopor ▼. Slnglelon. 

Ooowli ^PImJ 

0OiliteBi» 44a 

Feiin.8teti.... 108 

lOCSdifomiA 717 

•19TuLM 33S 

29Ptaii.8tiite.... 14S 

eWuoonnn 489 

.... 4M 

QrookarT. BelkBgM.. 

ChomBMUn ▼• TUbh Tiaiflniifiiif CoiNrfLSl AUJiam^ 

PargMi ▼. Mayor tlOL ol McMb. .Mmmttpml eorffma . M AkbimL 606 

Dawwn ▼. MUhrt Admiairtwilor .ftf to i^/rmA. . .» Tbana 880 

D«zlarT. Oola 2VeqM« 6 l/naooodn. 486 

BdgorteiiT. Bird OAn^tiOe OWImqobii. 478 

BUkT.OMktt. JwigmmlB ISAikiiMM 608 

BUiiT. IblhMra JWmT l8TbiM 358 

BoMrioT.OflwM Oommtim lOCUiteiiia 748 

Rrwi Testate. fbtgerf 8<MiioStiite 

fy^girty ▼• flsliy Ni 

PrmaUui ▼. Ooibft Hi 

FruBont ▼• Gk^NP«i* . « , 
Folkr T. Hutohmci m8 
Fnlahtar ▼> BaadoB.... 

Oaddlw ▼. GbnoB Pm i i m aM^ 8 Biehaidaon'bBq. 807 

QamM T. PlUbhiB. BritiifriHi. nYmnoaoL ." 414 

••... 108 

Garkft ▼. OU. Slaam Nvr. 0». . . yryl^ww. 8Gblifonfe 868 

Uodbold T. Laabait #V«mI 8 BidMucdrailiBq, 108 

.... 484 
.... 487 

lOCUffotnia 714 

18THIM. 888 

lOOaifbraia 711 

lOGUifcniiB 748 


GodlrayT. Stato... 
Qombar ▼. Hai&atk 
Gra a a majw r ▼. 
Graan ▼. GbTiUand 



lOOuBfamift 726 

Haldanan k Gnibb ▼. Bnk of 

fiallac^ ▼. Qny 

Hardj ▼. Hunt. 

HiajBMaT. Meeka 

HandaraoD ▼. Martiii. 

Handenon t. Simwona. 


I • • a 



W. 8CUifotBU 8a 

llGUifbnb 787 

Vi.10 QdifoniB 708 

....18AikaMBB 800 

iVt.SS AhUma. 680 

... 894 

... 100 

HiggiiM T. JohnaoD^k flaira 

HoUiatar and SmiUi ▼. J«dgaa \ j^^.,,,,.. n ^v. . ^n. 

HopkinaT. Upahnr S u UtwigH mt. SOt^iaa 876 

HoiTT. Barker. JlMlora 11 Oliforaia ...... 791 

Hwnplmys T. McQUl «.*.jMwr» 8Gklifioaua 621 

Hut ▼. OommoBwaallk. Lmnm^. ISGntlM. 443 

HantooBT. Dow t ^t t m n k ^ 28 VanaoML 404 

laaaoT. Swift ^JwdjwMmi fifM.....10Gialifenia 

lokaaoB T. JohoaoB. 

T. garalaitd ittdT^l . : 
MoBaifaoadOoL Z^'' 

i^ f I a p u^f .llOaiifenuB ...... 774 

... TOUoSteta 

Omsaa REFOBixa 19 

▼. Ttkykir Ckatidmortgagm,,. 701iio8tito 

Kendall T. CaKk Mame$tead§ lOQUifomift 

KylBT. ljnrmmUiSkmdOo,..,,(kmm4meatrrien*.A0'B^ 881 

LtffiniT.Kacke Partiienkip 9 Calif oral*.. •... 678 

Laadnm ▼. HatelMr. WiOt. 11 BJohardaonlilb. 887 

Lawaon T. Jordaa t/iK^^aMiil Veai. • . . . OArkaoaaa IM 

LegoTT. Doyle Sherifi^ mdm 11 BiohardKm'aL. 840 

linn T. Wright Fnmd. eoHm^miMBM Tena. 283 

UoydT. Lynch. ,.,.QpteMMi<y. SSFom. Stale.... 187 

LoekridgBY. Baldwin Aweaftaa aOTezaa. 886 

Lockwood V. IfitoMl ITjary 70h)o8tata 78 

Lyman t. BdgBrtOB. Qfleei and ^I0etn. .89 Vermont 418 

UaxahT. Stephnaoa Deedg 70hlo8tnte 78 

Martin T.BeU. SiparaUpnpmi^., 9 Baohaidaon^Bq. 801 

Martin T. Manor EjmUabU auJgmm'i.lO RIohardaon'a L. 228 

McAffflrty ▼. CkmofePa Lbmbii. . ,BoundaHe$ 70hioStata 67 

MoArthnr ▼. Oanrlali AdrnV Jfo'ri and adm'ra... 82 Alabama. 629 

M€anw^C>Kv.Co(i,Br^^ 82Alabama. 662 

MoOoyr. Lemon ••..i>a0M0et 11 Biohazdaon'a L. 248 

MoCone ada. State. BMery 6 Bhode lehmd . . 178 

Mcl>BnielaT.BBnkolBatland...ifMaike 89 Vermont. 408 

McKeoo ▼. Blabee XsBemptiom. 90alifomia 642 

McMiDan ▼. Hyatt Mortgagm 90alifomia 666 

MoMinaa ▼. Biohaida. Mortgagea, 9CUifonda 666 

MOlaT. Howeth ^Vond. eoaw|i«ieief.l9Tezaa. 831 

Milton ▼. Haden /brief. 82 Alabama. 628 

MitoheU Y. Beed Xttoppd OCalifomia 647 

MooTOY. Hood OnarGtoiandiMrd. 9 Biohaideon'aEq. 210 

Murray Y. Able... Fendor'f ttea. lOTexae. 830 

MnrrayY. 8.0KolinaR.R.Co..3r^<4mie 10 Bichardwm'e L . 210 

Naeh Y. HeimoaiDa LiqMateddamage§ OOalifomia 676 

Needlea'aEzeoatorY. Keedlea....ild«ttR0aneiite. 70hio State 85 

Overton y. Beavera. (Tuardjan and teord. 19 Arkanaaa 610 

Fliyne'a AdminietratorY. Fkyne...ffr'rsandadm'ff«... 29 Vermont. 402 

People ex reL McKoneY.Weller.lfteeftoiw 11 Oalifomia 754 

People ez reL McMillan Y.Viacher.ifor^aj^es 9 Galifomift 655 

Petera y. Phillipa i^pec|/£cj9ei/onnanee.l9 Texas 319 

^^^^A7^0^!S^ 28Pemi.StaU.... 128 

Piercy Y. Sabin. Pfeadiiii;rafidpnie..lOOalifonda 692 

Price Y. Taylor EsUUei-taa 28 Penn. State.... 105 

Price Y. Wiley.. AmendmenU, 19 Texas 323 

Pritehard Y. WaUaoe. BenUUngtmU 4Sneed 254 

Ptovidenoe Bank Y. WiUdBion... /n(«i7<eader 4 Rhode leland. . . 100 

PkyorY. otone Hamatead 19Texaa. 841 

so Cases Re)*orteix 

Bbtobt. Fi 
Bambo V. Wyatt*s Adiiiinlatimtor./>eisntM. 82 Alabama. M4 

Ramsey v. Ramsey*! Bzeoator . . . Wills 13 Grattan 438 

Ritterv. Scannell AUachmenU 11 California 776 

Roberts v. Roberts. JudicicU 9cUe$ 13 Orattan 436 

Robinson v. Magee ComtiUutional law, . 9 California 638 

Boss y. Smith Ntg. instruments, . . 19 Texas 327 

EnsseH Y. Bnokley LeUers 4 Rhode Island. . . 167 

Schroeder v. Patenon* Vendor and vendee, 4 Rhode lalaad • . 168 

Sewcll V. Eaton Sales 6 Wisoonsin. 471 

Shaw, Ex parte Habeascorpus 7 Ohio State 66 

Sheltonv. Berry Affidavits 19 Texas 826 

Sliclton V. Johnson .Lis pendens 4 Snaed 266 

^^'°^ht Co. ^^'^***** ^^}0as€ompaniee dWisoonsin. 478 

Shepherd v. Gaasiday Homesteads 20 Texas 372 

Siegel V. Chidsey PaHnership 28 Penn. Stftto 126 

Silvan y. Coffee Executions 20 Texas 371 

Sims y. Boynton Ex'rs and adnCrs, . .32 Alabama. 640 

Sims y. McLure Lunatics 8 Richaidson'sEq. 196 

Smith V. Perry Executions 18 Texas 296 

Snoddy v. Finoh. Title deeds 9 Richardson's Eq. 216 

Spragne y. Smith Common carriers, . .29 Vermont. 424 

State V. Brown Fonjery 4 Rhode Island. . . 168 

Stateada. Eyana Forgery 8 Ohio State 98 

State ads. Godfrey Infancy 31 Alabama. 494 

State V. McCnne Bobbery 6 Rhode Island. . . 176 

State ads. Wall Murder 18 Texas 302 

State ▼. Washington Affray 19 Texas 323 

Steele y. McTyer's Adm'r. Common carriers, , .31 Alabama^ 616 

Townsend y. Smith Judgments 20 Texas 400 

Tandeyer's AdrnVa ▼. Freeman. . Tru^t.s 20 Texas 391 

^^^S^^^^'^"'^'^'''] Mortgages 9 CaUfomia...... 655 

Wally. State Murder 18 Texas 302 

Wallace ▼. Canaday Bailments. 4 Sneed 250 

Walsh y. Blatchley Neg. inUruments.,, 6 Wisconsin. 469 

Washington ads. SUte Affray 19 Texas 823 

Watkins y. Walker Connty Highways 18 Texas 298 

Weaver v. Fegely Constitutionallaw . ,^ Verm. State.... 151 

Wellerads. PeopleexreL ^cSmjx^ Elections 11 California. 754 

Wheatleyy. Harris Animals 4 Sneed 268 

Wheelery. Uollis Quardianwndward,\9TexsM, 363 

White y. Haas Merger 32 Alabama 648 

Whitneyy. Higgins Judgmente. 10 California 748 

Wilson y. Campbell Executione 33 Alabama 686 

Wiswall y. Stewart k EasUm. . . . Trvsts 82 Alahanm. 649 

Woody. Chambera Fraud. eon m ifanea,20 Texas. 888 

WoodriagT. Forks Townahip..../f»9At0ayf 28P«ui. Stale.... 184 

WfjghtT. Young Dower 6WlaooiiiiiL 447 


A. & N» K. &• ▼• ^^MhlnnL • • • • 098 

AbboU ▼. Cobfurn 709 

Abeel T. Raddiff 003,505 

Abel V. Heathcoie 576 

Abell V. Calderwood 645 

Abemathy t. Boazman 478 

Acker ▼. Conmioiiwealth .... 182» 190 

Acker v. Trueland 848, 849 

Ackley ▼. Chamberlain 848, 350 

AdairT.Bhaw 546 

Adams t. Dickson 168,603 

Adama v. Hackett 694 

Adama ▼. Jenkins 352 

Adams t. Knowlton 691 

Adama ▼• McK esson 159 

Adama ▼. WDson. 264 

AdsitT. Brady 717 

Agee ▼. Williams 528 

Agnew ▼. Johnson 230 

A^ixre ▼. Packard 655 

Aiken v. Snttle 275 

Alabama eto. B. B. Go. t, Eidd. 522 
AUIrich Y.Cheshire B.B. Co.... 881 

Alexander ▼. Bunnell 206, 206 

Alexander ▼. Gilliam 314 

Alexander ▼. Greenwood. 578 

Alexander t. Maverick 709 

Alexander v. Stewart 561 

Alford ▼• Cochrane 327 

Alford V. Samnels 542 

Allegro V. Maryland Ins. Co ... • 523 
Allen V. Center Valley Co. . .210, 406 

Allen V. Chase 347,348 

Allen V. Caldwell 345 

Allenv. Dodd 791 

Allen ▼. McCnllongh 275 

Allenv. State 191 

Alley ▼. 0eschamps 780,735 

Allis V. Billings. 280 

Allison V. Allison 205 

Alpass ▼. Watkins 115 

Alison V. Dnrant 675 

Alvord V. Beach 578 

Ames Iron Works v. Warren .679 68, 70 
Ames V. First Div. St. Panl k 

Pac. R.R. Co 628 

Ames V. Palmer 432 

Amherst Academy v. Cowls .... 378 

Amory v. Flyim 261 

AnderM>n v. Critcher 505 

Anderson v. Poalke.573» 575, 582, 584 

Anderson T. Follsr 291 

Anderson V. Hill 570 

Anderson v. Lemon 682 

Anderson v. Ptaki&r 632 

Anderson v. Roberts.. •• 333 

Anderson v. State 190 

AndrewsY. Wilkes 600.675 

Andrews y. Doe 675 

Andrews y, Hooadon 351 

Angelo Y. VeoM 497 

Ankerstein Y.Clark 528 

Anonymous Ill, 156, 183 

Anthony y. Leftwioh.. .781, 733, 737 

Arberry Y. Beavers 714 

Archer V. McFall 227 

Armitage v. Wadsworth 217 

Armstrong Y. Tait 384 

Arnold v. Cost 176 

Arnold v. Potter 68 

Arto Y. Maydole 351 

Ashv.Ash 248 

Ashton V. Inde 851 

Ashworthv. Eattridge 176 

Aspinwall v. Balch 585 

Attomgr-geoeral y. life It Firs 

Ins. Co 515 

Atwood Y. Wright 573, 584, 589 

Austin V. Stanley 348 

Austin v. Wilson 249 

Averill v. Loucks 602 

AYeryv. Avery 589 

Ayletv. Dodd 677 

Babb Y. Qemson 139 

Baboock Y. Goodrich 714 

Babcock Y. Wilson 739 

Backus Y. Murphy 150 

Bagsett V. Fries 110 

Ba^y V. Ward 703. 

Bailey Y. Carleton 478 

Bailey v. Mayor etc. of K. Y.508, 717 

Bailey Y. PatterKm 213 

Bailey Y. State 450 

Baird v. Tolliver 678 

Baker v. Haines 176 

Baker V. Holtpzaffell 503 

Baker v. Prewitt 540 

Baker's Appeal 126,. 210 

Balilridge v. Cook 340 

Baldridge Y. Scott 400 

Baldwin v. Palmer 466 



Cases Cited. 

Baldwin V. Peet 291 

Baldwin, Star, k Co. v. Bnateil. . 886 

Ballv. Hill 830 

Ballard v. McKenna 198 

Baltimore etc R. R. Co. ▼.Wood- 

ruff 656 

Bane v. Wick 97 

Banister v. iiiggioBon 779 

Uank ▼. Uammond 236 

iUiik V. McLeod 66 

Dank v. S. C. Mfff. Co 244 

Bank of British l^rth America v. 

Hooper 610 

Bank of Missouri v. Wells 


Bank of Monroe, Ex parte 327 

Bank of Penn. v. Wise 156, 158 

Bank of United States v. Daniels. 413 
Bank of United States ▼. Schnltz. 737 
Baptist Church of Ithaca t. Bige- 

low 423 

Barber v. Brace ... 553 

Barber V. Harris 272 

Barcklev V. Howell... •• 526 

BardweU V. Perry 210 

Baring V. Peirce ...• 465 

Barker v.Esty 405 

Barker y. Stacy 67, 68 

Barksdale V. Garrett 540 

Barlow t. Lambert. 522, 523, 554, 555 

Barnes y. Perine 378, 379 

Barnes V. State 180, 181 

Barnes v. White 295, 347, 348 

Bamet V. Bass 599 

Bamett v. Tarrence 535, 536, 557 

Bamficlci, Doe ez dem. t. Wetton. 1 14 

Barrett v. Churchill 581 

Barron V. MuUin 573,584 

Barrows v. Turner 67 

Bartee v. Tompkins 581 

Bartholomew v. West 814, 845 

Bartlett V. Budd 260 

Bartlctt & Co. ▼. Jonea 688 

Basford V. Brown 879 

Bason V.Holt 203 

Bassett V. CarletOQ 881 

Bassett v. Lockard 572, 678, 675 

Bastow, Doe ex dem. r. Cos. .... 502 

Bateman ▼. Johasoa 458 

lUtesY. Dandy ...•••••• 88 

Ikites V. Lancaster •••••• 791 

• Bates \r. Ruddick 754 

Bates V. Sparrell 423 

Baudinv.BoUff 586 

Bauman ▼. Bauman 604 

Baxterv. Barlof Poitsmonth.... 198 
Bazin v. Liverpool^ F. 8. Co.. . , 555 

Bcall V.Lynn 539 

Bcall V. WUUamson 68, 71, 72 

BeaUv.See 200 

Beary.Bitzer 156 

Bear V. Whisler 138 

Beardaley ▼. Knight 216 

BMrdaky ▼. Smith 743 

Beaty ▼. Knowler 614 

Beaupland v. McKeen • • • . . 134 

Beavan V. McDonnell 198 

Beckv.State 450 

Beckett V. Seloyer 707. 709 

Beekley V. Newland 96 

Beckmanv. Manlove..,.. 098 

Beebe t. Dudley • . 237 

Beeby V. Beeby 721 

Beene v. Collenberger 581 

Belme ▼. Mower 700 

Bell V.Ingram 702 

Belloe V. Rogers 663 

Belote v. State 448^450 451 

Belt V. Mehen 441 

Beltzhoover v. BUckstock 139 

Bemus v. Quiggle 741 

Benv.State 306 

Bendall Y. BendaU 605 

Bender V.Stewart... 141 

Benedict ▼. Lynch •. 739 

Benham ▼. Rowe 605 

Bengston ▼• Thingmdla Steamshiv 

Co 633, 684 

Bennett v. Earl of IViiikervilie 

110. 114 

Bennett V. Hamill 216 

Bennett V. Taylor 662; 063 

Bensley v. Mountain Lake Water 

Co 739 

Bentley ▼. Bustard 623 

Bequette v. Oaumeld 618, fl20 

Bettison t. Budd 589, 690 

Bevans v. Bolton 07 

BigelowT. Hartford Bridge Co. 67, 63 

Bigelow V. Walker. 796 

BiUings V. Billings 291,338 

Birdv.Bird 720 

Bird v. Dennison 619 

Birdv. Lisbroa 625, 698 

Bisooe V. Sandefnr. 601 

Bishop V. Mayor etc. of Macon. . 249 
Bf'shop of Winchester ▼. Paine. . 751 

Bissel y. Payne 66S 

Blacky. Walton 572,589 

BUck y. Zaohariah 78] 

Blair v. Forehand 259 

Blair y. Perpetual Ina. Co 516 

Bhur y. WiUiama &tl 

Blake y. Bldred 


Blanohard y. Russell 69 

Bland v. Munoaater 710 

Blaney y. Bearoe. 659 

Blanny. OiambliM.... 589 

Bledsoe y. Thompson. 791 

Bleecker y. Smith 467 

Bloodgood y. Ehrtley 561 

Bloom y. Burdick 696 

Blossom y. Griffin 264 

Bludworth y. Lake ,.., 675 

Blue y. Blue 344|34a 

Blum y. Garter «.... 847 

BlttineDthal y. Bninerd 421 


Cases Cmax 


Blyitene t. Bamtt e7, 68, 7*2 

Bishop of WiDch«ster v. Beavor. 761 
Board of Police, etc ▼. Onuit.714, 746 

Bobo Y. Bichmond 62 

Bodine ▼. Glading. 739 

Bogert ▼. Bogert 681 

Boggs ▼. Adger 216 

B<»gs V. Har^rave 679; 976, 678 

Bouvar v. Zcigler 676 

Bolton ▼. Hamilton 363 

BoltoQ ▼. Johns 140 

Boaboniu, £x parte 144 

Bond V. Rameey « 683 

BodmUt. State 184 

Bonlen ▼. McBae 390 

Borden T. Tillman 390 

BothearT. Lay 260 

Bosnall* Doe ez dem. ▼. Harvej. Ill 
Boston Mm Ckirp. ▼. Bulfinoh. . . 477 

Bolt ▼.McCoy 706 

Bottoma ▼. MithTin 683 

Bowbiidge & Channel BridgBT. 

Le Prior de Steatfoid 136 

Bowen ▼. Johnson 230 

Bowerfaank T. Morria 706 

Bowie ▼. Kaider 796 

Bowker ▼. Collina 847,348 

Bowman ▼. Manter 675 

Boyce T. Strother 670 

Boyd,Inre 703 

Boyd, Den ex dem. v. Bsnta .... 498 

Boyd ▼. Beandin 458 

Boyd ▼. Cadderback 340 

Boyd ▼. MoComba 156 

Boykin ▼. Cook. . . .674^ 676, 680, 681 

Boyle ▼. Zacbarie 153 

Bradford ▼. Bondinot 694 

Bradley T.Lee 620 

Bradley ▼. Snyder 676^ 754 

Bninaid ▼. Burton 431 

Branch Bank etc. ▼. Joaai 613 

Biandeia ▼. Keoafcadtl 465 

Braahier ▼. GiatB 735 

BnudlT. Uiam •....604» 697 

Braaer ▼. Analey 797 

Brennon ▼. State 

170, 184» 186, 190, 191 

Brewer ▼. Borton etc. B.B. Co.. 61 

Brickhonae ▼. Briokhonae 642 

Brickman r. Brickman 321 

Bridge ▼. Austin 233 

Bridge v. Grand Junction Ii*j Co. 428 

Bridgea V. TiUey 673,674 

Brigance v. Erwin 318 

Briggs ▼. Dorr 329 

BrigssT.HiU 330 

Bri^am ▼. Weaver • 67 

BrinckerhofT ▼. Starkins 261 

Brinley ▼. Ifann 610 

Briaooe ▼. BroDaagih.260,286^291, 333 

BriUT. Aylett 394 

Brittv. State 186, 187 

firaadhorrt ▼. Morris 114 

BiookT. JoMS 381 

Brook T.SoathwIdk., 
Bromley ▼. Ooodikh^ 



Brooka'r. Chaplin 423 

Brooks ▼.Hyde 344,346 

Brooks ▼. People 181 

Brooks ▼. Booney 779 

Broome ▼. Monok 238 

Brotherton V. Downer 632 

Brown ▼. Biydenbai^pi 742 

Brown ▼. Brown 5j3 

Brown ▼. Qyrne 663, 535 

Brown ▼. Cbvillaad 


Brown ▼. Commonwealth 171 

BrowningT. Cityof Spriagfiald. 570 

Browning ▼. Beans 278 

Browning, Matter of 577 

Brownaon ▼. Hall 275 

Brown ▼• Force 333 

Brown ▼. Gray 74 

Brown T.Haff 336 

Brown ▼. Keller 846 

Brown ▼. LaCroHeCltyGaaUght 

ftCokeCo 620,638, 6£Z 

BrownT.K. Y.G.I* Co 488 

Brown ▼• Porter • 477 

Brown V. Scott 631, 632; 636 

Brown ▼. Seymour 247 

Brown ▼. State 189, 447, 452 

Brown ▼. Taylor 404 

Brown ▼. Van Dyke 616 

Bruce V. State 452 

Brumagin ▼. TiUinghaat 676 

Bryan ▼. Bridge 316 

Bryan V. Lofftos 434 

Bryan V. Lund • 325 

Bryan y. State 462 

BryantT. Booths 840 

Buchan V. Snnmsr 602, 703 

Buck ▼. Swasey 076 

Bucknall V. Story 676 

Bodd T.Brooke 61, 76 

Bufiford v. HoUiman. 216 

Bullim T. Csmpbell 322 

Bunker t. Locke. .M7t 848; 361, 352 

Burhank T. Crooksr 230 

Buroh T.Smith 291 

Burseas t. Chandler :227 

Burke V. Cruger 076 

Burkhaltor v. Edwards 478 

Burley v. German Am. Bank . . . 632 

Burn V. Phelps 604 

BurnapT.Cook 742 

BumettT. Kinaston 88 

BumhamT. Coffin 404 

Burns T. Ledbetter 680 

BurnsT.Stato 190 

Burrin V. Charlton 109 

Burroughs t. Housatonlo Bi. B. 

Co 666 

Burrows t. March G. 4 a Co.. . 480 

BartonT. Uea §78 

Boshnell, Bx parto 9! 

Biish*B Appeal 116 


Cases Cited 

Bustard ▼. QfttM 639 

Batcher v. Pn>vid8iiM Oil Go.. 488 

Butler V. O'Brien 581 

Butterfield ▼. MaoomlMr 635 

Baxton V. Dearborn 852 

Byer v. Etnyre 779 

Byrdy. Turpin.: 572,574 

GahiU ▼. Palmer 685 

Caldwell ▼. Walten 813 

GaL P. &. R. Go. ▼. Owl P. B. 

Co 714 

California Steam Kar. Go. t. 

Wright 677,678 

Galkina V. F^Mker 607 

Calkina ▼. SUte 413 

Gall V.Ward 618.616 

Calvert v. Morrow 542 

Gamp V. Grant 210 

Campv. Soott 468 

Campbell v. Brown 578,580 

Campbell V. Metier 280 

Campbell v. Morse 520 

Camden t. Mullen 691 

Camden ft Amboy Bh B. Go. v. 

Burke 427 

GanalBank V. Bankof Albanv.. 411 
Candler, Doe ez dem v. Smith. . 


Caniton, Doe dem. v. RnoMile. . 114 

Cannon V. McDaniel 831 

Capehart v. Dowen 581 

Oapehartv. Dowery 573, 579 

Capehart V. Huev 213 

Capital Bank of Maoon v. &ither- 

ford 628^629 

Caxgile V. Ba^on... 581 

Carnart v. Anbum O. L. Go. . . • 489 

Carmiohael v. Brooks 505 

Carpentier v. Brenham 754 

Carroll v. Norwood 526 

Carson V. Allen 406 

Carter V. Anderson 516 

Carterv. Peck 428 

Garter V. Stokes 421 

Casey V. Inloes 698 

Gashion v. Faina. 575 

Caskey V. Haviland 530 

Casseunan v. Packard 851 

CassUy V. Rhodes 157 

Castellowv. State 451 

Cathcart v. Bobinson 735 

Gavanagh, Matter of 575, 576 

Cavanangh v. Peterson 401 

Cavis V. Kobertson 767 

Carroway V. Chanoey 61 

Carter V. McMichael • 114 

Center V. Wills 51 

Cbadbume v. Sumner 779 

Chaffee v. Rutland R. R. Co.... 429 

Chambers v. Cochran 574 

Chambers v. Chambers 721 

Chambers V. Pleak 361 

Ghambers V. Warkhoose 260 

Ghamplin V. Laytin..... 414 

Chandler V. Commonwealth 498 

Chandler v. Spragne 555 

Chandoa V. Talbot 88 

Chapell ▼. State 100 

Chapin V. SUte. 809 

Ciiapman T. Chapman 122 

Chapman v. Palmer. B30, 636 

Charles V. Dubose 550 

Charless v. Ijunberson. 


Chase v. Dwinal 670 

Chase v. Merrimack Bank. . .648, 770 

Ghater V. S. F. S. R. Go 740 

Cheatham v. Jones. 845 

Chesley ▼. Frost 548 

Chess V. Chess. 492 

Chess's Appeal • 822 

Chester V. Greer. 257 

Chevallier v. Straham 622 

Chicago ft M. R R ▼. PatoUn. . 228 

Chidc^aCase. 184 

Chighi«>lav.Doeexdeni.EsUvab 541 

Chipman ▼. Bmerio 739 

Chisholmv.AtlantioO. L.G01.. 488 

Cholmondeley v. Clinton. 558 

Choteau v. Jones. 196 

Christian V. Ganll 575 

Chriatianbeny V. CSuistianbeiTy. 724 
Christopher v» Mayor of N. 7. . . 512 

Christyv.Dyer 848 

Chumasero v. Potts 714 

City of Alton v. Dlinois T. Co. . . 75 
City Council of Montgomecy v. 

Montgomery ft Wetompka 

Plank Road Go 514,526 

aty of Milwaukee v. O'Snllivan 


City of Richmond v. Long. ..... 511 

Clackner v. State 447 

Glagne V. Grediton 85 

Cla^v. easier 615 

Clark V.Clark 578,724 

Clark v.Depew 189^884 

Clark V. Diggs 620 

Clark V. Farrow 260 

Clark V. Jones 468 

Clark v.Kolan 852,858 

Clark V. Phceniz Ins. Co. 739 

CUrk T. Shannon 840, 851, 352 

Clark V. Siever 456 

Clark V. TarbeU 68,70 

Clark V. Whittaker 54 

Clarke T. Perry 709 

Clary V. State 178, 18(^ 181, 185 

Clason V. Bailey 282 

CUy V. Cottrell 125 

Clay V. Dennis 564 

Click V. Click 258 

Clinton V. Strong.. 670 

Cloflo V. Fields 876 

Close V. Judson .••• 282 

Cobb V. Buswell 67,68 

Cobnmv. HoUit 477 

Casks Oitjed. 

rn trrillT M—rr 269 

CoddT.Godd 720 

Coil viae ▼. GeUteB 602 

Cotly V. Quizm 779 

Coffcev.SUvmn 371 

Coffin ▼. Cooper 679 

CoSman ▼. Hampton 390 

CoCfinan t. Keithly 154 

Cogan T. FrUby 673, 674 

CtMgBY, Bernard 520, 521 

Colbert V. Moore . .672; 673. 674, 684 

Colbura v. Mason 303 

Cole T. Champlaia Ttump. Co.., 409 

Colev. Gill 348 

Cole ▼. Laoonin 918. Bnk. . .847, 848 

ColeT. Sprowl 605 

Coleman t. Bow* 840 

Coles ▼. SoDlaby 698 

Collins ▼.Gba^ 467 

Collins ▼. People 190 

Collins V. Tonj 660 

Colmau V. Paokard 659 

Comfort ▼. People 447,450 

Commercial Bank y.TasooGonnty 675 
Commercial Gas Co. ▼. Soott. ... 488 

Commissionen t. Smith 678, 580 

Ooounisnoneri d Lacas Connty 

T.Hont 879,380 

Commonwealth ▼. Beaman 261 

Commonwealth ▼. Bell 447 

Commonwealth T. Brooks 180 

Commonwealth ▼. Garey 171 

Commonwealth ▼• Ghanoe 261 

CommonweaUh r, GUffovd 


Commonwealth T. HMtaan 176 

Commonwealth ▼. Bris eke. B. B. 616 

Commonwealth T. Green 498 

Commonwealth ▼. HbUaad 180 

Commonwealth ▼. Hnmphries. . . 


Oommonwealih r. Leoky 67 

Commonwealth ▼. Lowell G. I* 

Co 486 

Commonwealth ▼. Magee 298 

Commonwealth ▼. Martin 184 

Commonwealth v. MoKisson. . . . 702 

Commonwealth ▼• Mead 497, 499 

Commonwealth ▼. Millard. . .447, 449 

Commonwealth ▼. Molts 60, 119 

Commonwealth y. MoQtffomery. . 449 

Commonwealth ▼. Mnrphy 188 

Commonwealth v. Ordwav 184 

Commonwealth t. Bandau. . .4479 ^50 

Commonwealth ▼. RUey 171 

Commonwealth y. Snelling 


Commonwealth ▼. Startivant. • • . 452 

Commonwealth v. Tanner 190 

Compton y. Barnes 695 

Concordia Savings and Aid Asm>- 

elation T. Beed 633 

Oonklin ▼. Foster 844,345 

Cbnkwifght T. People 448^451 

Conner ▼. Baaks 830 

Conrad T. SehiPsmb .' 458 

ConwavT. Dopesa..... 85 

ConweU ▼• Pnmphrty 330 

CookT. Bsal 247 

Cook V. Farnam 678 

Cook V. Maadns • 751 

Cook ▼. Soathwiek 148 

Cook V. Thomhill 200 

Cooke V. Bremond 399 

Cooper ▼. Berry 522 

CooperT.BomU 682 

Cooperv.Gole 432 

Cooper T. Martin 761 

Coosa BiTsr Stsamhoat Co. ▼. 

Barclay 622 

Coover^ Appeal 128^ 160 

Copelaad t. Gopdaad 60 

Corseer.Graig 790 

Corwin ▼. Daiddson 868 

Cosaoky. DetoondrM 821 

Ooslakey.TOl 732 

Coetillo y. Thompson. 516 

Cothrany. MoCoy 672 

Coartwzjght T. Besr BItst k A. 

W.&M.G0 724 

Covanhoyan y. Hart 838 

Cowlea y. Baoon 600^674 

Cowan y. GampbeU 825 

Cozy.Peteison 628,655 

Cox y. Shropeshirs 384 

Cimddock y. ShirW 339 

Crane Bros. MiEg. Oow y. Motm. . 

Crane y. IMf 

CraigT.Dals • 168 

Cralgy.Godtey 881,647 

Craigy. Kline 154 

Crews y. Fendletoii 166 

Crews y. State.. 178»179» 180^ 181, 190 

Criley y. Chamberiain 115 

CriUey y. State 448 

Crocker y. State 181, 190 

Crofty.Bains 818 

Crogan y. Liyinflston 681 

Cromwally. HoUlday 814 

Cropper y. Commonwealtli.. .... 66 

Croswelly. Crane.... 783 

Crow y. Red Birer Co. Bank.... 291 

Crow y. Whitworth 849 

Crowell y. Manghs • 61 

Crozier y. Kirker 145 

Ciyer y. Andrews • 368 

Cnllum V. Branch Baak 340 

Colver y. Boms 691 

Cumberland Yalley B. B Co. y. 

Baab 880 

Cammings y. Arnold 264 

Cammings y. Goe 676 

Cammings y. Coleman 698 

Camminn's Appeal 210 

Cnnnmgbam y. snith 602 

Curry y. Chicago eto. By. 222 

Curry y.Larer • 678 

Cnrtls y. Gnrtb ••• Of 

Cases Cimx 


Cartifl ▼• HnblMfd 184 

Cartii ▼• Ljrnuoi 417 

Cnrtii T. Richwdi 629, 631, 632 

Cortifl V. SUte. 448,451 

Catboah ▼. GUbert 139 

Cattt V. Hiakini 866 

Dakin ▼. Oonkh. 773 

Dale ▼. Smith. 75 

DalUm ▼. Bowktr 122 

Daniel T. Leitoh 577,679 

Danner v. South CaroUaft B. R. 

Co 221 

Darby T. Dizon 861,862 

Darbv ▼. Oiiseley 173 

Dare*8 Appeal, Maiy 160 

Damn ▼. Mayor eto. el Mobfle. 664 

Da Boaa V. De Pinna. 647 

Darrt ▼. Trammell 840 

Darwin ▼. Hatfield 678,680,681 

Dauterive y. BroaaMid 791 

Davanay ▼. Esgenhoff 625 

Davidaon ▼. Cooper 649 

Davies'Caae 183,184 

Dayia ▼. Bamett 610 

Davis Y. Clementi. 420 

DaYiB V. Ehrman. 702 

DaYisT. Mapes 628» 629,630 

DaYiB Y. Oswalt 689 

Davis Y. Ownsby 246 

Davis V. People 452 

DaviB Y. Potter 628,636,636 

Davis Y. State. 447,449,451 

Davone y. Fanning. • , 550 

Dawley Y. Brown. 680 

Dayv. Wilson 434 

Dean y. Connelly 140 

Dean y. Morns 578, 674, 583 

Deane y. Randolph. 422 

De Castro y. Oark 739 

Decker V. Fisher 261 

De Cordova y. Smith 739 

Deere v. Chapman 344 

Deering, Matter of Petition 489 

Deffelisv. Pico 692 

Dejamet y. Dejamet 722, 723 

Delaney, Estate of 848, 849, 352 

De La Vergne y. Evertson 602 

Delmonioo y. Mayor eta oi K. T. 


Delop Y. Windsor 70 

De Loais y. Meek ^ . . 562 

Demaret y. Bennett 841 

Den Y. Hardenberffh 275 

Dennison y. Camanan 626 

Denny y. Fknlkner • 70 

De Rutte Y. Mnldraw 688 

Desha Y. UolUmd 623 

Detrick Y. Mintt 404^689 

DevereaQz Y. Cooper 628 

Devine y. Martin 877 

Dial Y. Farrow 313 

Diok ▼. Robinson 682 

INakfloaon Y. ObDint 700 

IHokenson ▼. GfUOaiid. 699 

Dickerson ▼. Ripley Oonnly. .... 413 

Dickinson Y. GiUUuid 700 

Dickinson y. Mayor 348 

Dickson y. Montffoaiary 376, 379 

Dietrich's Appeal 594 

DillY.Shahan 414 

Dillv.SUte 186 

Diller Y. Roberts 501. 

DiUonY. Byrne 74! 

Dillon Y. Dillon 721 

Dillon Y. People 451 

Dillon Y. Washington O. Lb Go. . 488 

Dinkins Y. State 300 

Directors of Infirmaiy of Marion 
Co. V. Trustees of Weetfield 

Township, Morrow Co 64, 6b 

Directors of Mnsklngam Go. In- 
firmary y. City of Toledo..... 54 

Dittos Y. Qnn^ 97 

Divine Y. Harvis 746 

Dixon Y. State 461 

DoddY.McCraw 833 

DoddY. Keilson 678 

Dodds Y. Wilson 199 

Dodsonv. Mock 260 

Dodge Y. Woolsey 512 

Doev. Cooper 114 

Doe Y. Goldsmith 114 

Doe Y. Ireland 530 

Doev. Oliver 110, 650 

DoeY. Prosser 360, 361 

Doe, Lessee, y. Langlauds 642 

Doleret v. Rothschild 732 

Donahue v. Facklcr 586 

Donelly V. Baker 248 

Dorsey y. Jsokman 337 

Doty V. Wilder 647 

Douglass V. Reynoldi 238 

DowY. Jewell 216, 318 

Downard v. Crenshaw 573 

Downes v. Church 471 

Dozier v. Joyce 643 

Drake v. Mooro 346 

DraytonY. Hose 239 

DrexelY.Man 404 

Dreyer Y. State 448 

Driggs v. Abbott 709 

Driver v. Spenoe 680 

Drucker y. Uosenstein 847, 848 

Dubois Y. Delawaro k Hadson 

Canal Go 600 

DuckerY. Wood 248 

Du£^ v. Buchanan 682 

Dugan Y. Bridge Co. 616 

Dngan v. Gittings. ;....• 46 

Duggins Y. Watson 505 

Duke of Norfolk Y. Worthy..... 790 

Dumphy v. Guindon 724 

Dunoan Y. Beard 526 

Duncan v. Lawrence 627 

Duncan Y. Soott 747 

Dunham Y. Chatham. 390 

Dunham Y.Coz Wt 

Gases CmD. 


DttDham T. MilUitl 575 

Dunham ▼. Minard 577, 580 

Donnr. Fnuder 578,574 

Dann v. Snell 329 

Donn V. Sublett 826,327 

DlJrphy ▼. Neilaoo 214 

Datton V. WarduuMr 675^ 676 

Duty T. Graham 675 

DavaUT. Speed 575^580 

Dyer ▼. Dyer 885 

Dyett V. PendletoD 604 

Dygert ▼. Schenck 186, 137 

Dyson ▼. Bradshaw 620^696 

Dyaon t. Sheley 850 

Dwight Y. BrewBter 520 

Dwight ▼. Caller 840 

E^erv. AtlaaInt.Oo 522 

Eeele T. Eichelbeigw 797 

Eskin T.Vance 102 

Earl of Bath and lioniagoe'i 

Case 410 

Earle Y. Torton 581 

Bast ▼. Wood 582 

Esst RiYer Bank Y. Bogen 633 

East Tenn. & V. &. Oo. t. Gam- 

mon 264 

EasterlingY. BIythe 561 

Eestem £. B. Y. Benedict 610 

Esston Y. PickengUl 580 

Eddy Y. Simpsofn 772 

EdgeU V. MoLanghlin 748 

E^rly Y. Bosh 68,70 

Edmonson y. Hart 646 

Edmunds Y. DaYis 613,615 

Edney y. Edney 575, 576 

Edrington y. Bogen 832, 883 

Edson Y. Colbom 159 

Edwards Y. Etheringtan 504 

Edwards Y. Lent 628» 627, 631 

Edwards Y. Lewis 541 

Eichelberger Y. Baniti 115 

Eldridge Y. Wriglit 754 

Election Cbses 105 

EUicott Y. Martin 830 

Elliott Y. Branch Bank of MoUle 531 

Elliott T. Cronk 674 

EUiott Y. Piersol 784,786 

Ellisen Y. Halleok 697 

Ellison Y. Elwin 90 

Ellsworth Y. T6rtt 487,688 

EhnoreY.Hill 629 

ElsonT. Barrier 67 

Elston Y. Bobertson 848 

Elton Y. Markham 631 

Blwood Y. Klook 782 

Bmanoel Y. Bird 210 

Bmbiey Y.Owen .. 773 

Emerick's Ertate 586 

Emerson Y. LoweU a.L.O».... 488 

Kmefy Y. Fowler. .. •• 605 

befjT. Webster 61,264 

Infield Itoll Brid« Go. ▼. Hart- 

fadolo.lLB.Oo 690 

England Y. ClaA 572,574, 584 

Englebrecht Y. Shade. 351 

Engleman Y. State 449 

English Y. Oeor^ 528 

Enfflund y. Lewis. 691, 703 

Esdoo V. Colbom 432 

EsUYaY. Elliott 542,543 

EnteU Y.Cole 341 

Etheridge y. Vemoy 576 

Eysos v. Dendy 573, 575 

EYsns Y. QoYemor 298 

EYans Y.Myers 151 

Evans y. Womack 3J3 

Ewing Y. Bennett 477 

Esellv.MUler 522 

Fairbanks Y. Bloomfield 72 

Fairchild Y. Chastelleox 275 

FairchUd y. Fairchild 584 

Fairfax Y. Mnse 436,487 

Fairfield Y. Paine 540, 779 

FalesY. Hicks 629,634 

Falkner Y. Dorman 478 

Falkner Y. Hont 676 

Fanning Y. State 183, 184 

Fkriah Y. Eeigle 429 

Farley y. Vaoffhn 740 

Farmers' & Mechanics* Bank y. 

Champlain T. Co 232 

Fannenr & Mechanics' Bank y. 

Ege 150 

Farmers* & Mechanics* Bank v. 

Smith 154 

Farmers' & Merchants' Bank of 

Baltimore Y.CSty of Charlotte. 627 
Farmers' & Flanteni' Bank y. 

Martin 580 

Farmers' etc. Bank y. Martin. . . 


Farmers' Bank y. Peter 573, 579 

Famsworth Y. Chase 523 

Farrant Y. Thompson 548 

FarreU Y. Lloyd .* 141 

Faolkner Y. State 448 

FayY.Bnrditt 200 

Feemster Y. May 458, 739 

Fegenbosh y. Lang 146, 148 

Fenner y. Kirkman 531 

Fergnson Y. Clifford 67,68, 72 

FergasonY.MetropolitMiO.L.Co. 488 

Feignson Y. Miller 260 

Femsnder Y. Donn 122 

Feort Y. Bowell 67, 68 

Field Y. Mayor eto. of N. T. 

, 96,226, 698 

Fields Y.Stonston 264 

Findlay Y. Biddle 109 

Finley Y. Cazothers 401 

FinlcYY. Dietriek 853 

First Nat Bank Y. Conger 584 

First Presbyterian Congregation 

of Salem Y. Williams 648 

Fiiwt Beligioos Society of Wldtee- 

townT.Steae ••••• 


Cases Cited. 


Fish V. Chapman. ••.. 620, 521 

Fisher V. Cornell 347, 348 

Fisher ▼. Heraey 682 

Fisher V. Mooliok 466 

Fisher T. Salmon 610 

Fisher V. Selteer 686 

Fisher V. State 447 

Fitch V. Fitch 96 

Fitciiburg eto. R. R, ▼. Huma 


Fitzgerald v. Beebe 605 

Fitzherbert v. Mather 227 

Flanagan v. Cnshman 830 

Fleet V. Hegeman 261 

Fleetwood V. Citfjr of N. Y 670 

Flemming v. Marine Ins. Oo. • . . 134 

Fletcher v. Dyche 677 

Fletcher V. Femd 269 

Fletcher v. Ingram 473 

Fleury v. Bogeni 636, 696 

Flinn V.Chase 705,708 

Flood V. Reynold! 627 

Flory V. Beeker 561 

Floyd V. Rust 583 

Fogarty v. Sawyer 675 

Fogg V. Foga 347, 348 

Foley V. MoKeegan 678 

Folsom V. Garli 348 

Foqnett v. VYonley 114 

Forbes y. Logan 631 

Forbes V. Waller 631 

Fordv.Aiken 227 

Fore V. MoEenzie 572, 582, 584 

Foren v. Dealey 698 

Forster v. Fuller 613, 615 

Forsythe v. Price 159 

Fortenberry v. Frader 570 

Foster Y. State 447,449 

Fox V. Mensh , 646 

Fox V. Northern libeEtiea 510 

Fox V.Ohio 153 

Fox V. Reynolds 581 

Frank T. State 452 

Frank V. Stovin 115 

Franklin V. Coffee. 374 

Franklin v. Thurston 72 

Freeman v. Caldwell 673» 574 

Freeman v. Carpenter 468 

Freeman v. Curran 630 

French v. Loyal Co 267 

Frinkv.Coe 429 

Frische y. Kramer 675 

Fryer v. Rockefeller 675» 576 

Fuller ▼. Steiglitz 66 

Fullerton v. Doyle 294 

Fullerton V. Shauffer 156 

Fyfib V. Beers 345 

Gable V. Daub 115 

Oablick V. People 447 

Gaeme v. Cullen 437 

Gale v. Mensing 675 

Galena eto. R.R. Co. ▼. Fay .... 429 
Gait ▼. Swain. ••« 879» 380 

GambetteT. Brook 346, :U9 

Qamblev.VoU 7r»4 

Gangwer t. Fly 4C5 

Gangwere's Estate, In re 2U0 

Gans y. Renshaw • 340 

Gant ▼. Hnnsacker 492 

Gantt T. Phillips. ..681, 635, 536, 537 

Gara^ y. Du Bose 344, 345 

Garoia ▼. State 451 

Gardner y. Eberhart 851, 352 

Gardner y. Gantt 561 

Gardner y. Heartt 661 

Gardner y. Smith 429 

Garfield ▼. Knight's Ferry Co. . . 655 

Garland y. Rives 833 

Garrett y. Garrett 543 

Garwood y. Dennis 140 

Gasooigne's Case 188 

Gaskilfy. Dudley 743 

Gas Light Co. of Baltimore y. 

CoUiday 486,489 

Gassoway y. Hall 242 

Gavin y. Annan 697 

Geddis's Appeal 594 

Geey.Pearse 732 

Gehrke y. State 303 

Genesee Mutual Ins. Co. v. Moy- 

nlhen 627 

Geney V. Maynard 851 

George y. English 642 

George v. Harris 378 

George y. Morgan 114, 115 

George v. Thomas 473 

Ghen V.Rich 260 

Ghirardelli v. MoDermott. 797 

Gibbsv. Chase 466 

Gibson y. Clark 526 

Gibson y.Goldthwaite 603 

Gibson v. Soper 200 

Gibson y. Zimmerman 276 

Giddings v. Steele • 814 

Gilbert V. Cram 694 

Giles y. Williams 564 

Gilkey y. Peeler 868 

Gillenwater v. Madison & I. R. 

R.Co 429 

Gillett y. Mason 260 

Gillettv. Baloom. 156 

GUlinghamy. Demaey 234 

GiirsCase 188 

Gilman y. Contra Costa Go.. 748, 745 

Gilman v. Thompson 818, 779 

Gilmore v. £U>lt 767 

Girard Bank y. Penn Townahip 

Bank 134 

Gisboumy. Hurst. 520 

Glass y. Commonwealth. I78> 185» 190 

Gkzerv.Clift 608 

Glenn V. Billin^^ea 595 

Goare y. Benhnng 436 

Gober v. Hart 841 

Goddard V. Hapgood 406 

Godefiroy y.Oafdwell ^2; 675 

Godfrey y. Chadw«ll.. 761 

Cases Cited. 



Goff ▼. KUla 260 

Golden ▼. Ooekril 70 

Golder V. Ogden 797 

Goldmaii V. CUrk 350 

Goldstein T. People 448 

Gooch ▼. Atkina 401 

GoodaU T. ManhaU 370 

Goode V. Crow 578 

Goodell ▼. Blumer 829, 630 

Goodenow v. Ewer 075» 676, 754 

Goodman & Gove*! Cbw 158 

Goodman ▼. Winter 640 

Goodrich v. Cardwent 467 

Goodtitle v. Baldwin 539 

Goodtitle V. Herbert 502 

Goodtitle v. Laxmore 681 

Gordon t. Buchanan 521 

Gordon v. Uutcbinaon 522 

Goseom V. DonalBon 363 

Goald V. Hayes 595 

Gould T. Welwter 158 

Gourdin ▼. Davie 318 

Governor v. Withen 169, 523 

Gower ▼. Garter 678 

Graeffv. Hitchman 125 

Grafifv. Kip 599,602 

Graffine v. Tottenham 363 

Graham ▼. Bleakie 676, 679, 581 

Graham y. R. R. Co 493 

Grant v.Kinff 543 

Granthan v. Hawley 431 

Grattan t. Wiggins 739 

Graves V. State 448 

GravUlonv. Richards 370 

ray V. Eaton 683 

rayv. Jenks 660 

Gray V. Stevens 432 

Greeley v. Soott 349, 360, 351 

Green t. Allen 379 

Green v. Brovles 322 

Green v. Bntler 675 

Green V. Chandler 341 

Green v. Kellom 478 

Green T. Komegay 644 

Green t. Price 677 

Green V. Pronde 205 

Green ▼. Sperrv 432 

Green v. Van Bnskirk 68, 09, 70 

Greenbanm t. TurrilL 698 

Greenhood v. Ligon 458, 739 

Greer V.Wright 196 

Gregg V. Boetwick 

348,344,160^851, 352 

Gregg V. iSayre 477 

Gregory v. Ford 740 

Gregory V. Griffin 139 

Gregory v. Higsins 675 

Gregorys. Richards 448, 449 

Greneanx v. Wheeler 328 

GriflSnv. Prootor. 344, 345 

Griffith V. Ba£fiim 688 

Griffith ▼. Fracier 708 

Grimes ▼. Norris 709 

Grimes T. State 451 


Grimmett v. Witherington 370 

Grimsley ▼. Hooker 492 

Grinnelfv. Cook 251 

Grocers* Bsnk v. 0'R4mke. . .636, 637 

Groffv. Levan 156, 157 

Grogan v. Rnckle 697 

Groeholz v. Newman 347t 348 

Gross V. Fowler 676 

Gueet T. Homfray 734 

Gaier V. 0*Daniel 366 

Guilford v. Love 822 

GniMander ▼. Howell 70 

Guillev. Swsn 466 

Guion V. Guion 616 

Gunn V. Howell 216 

Gnnton v. Zsntringer 577 

Guthrie's Appeal 115 

Guyv. DaUprey 742 

Guyv.Ide 662 

Habergham v. Vinoent 205 

Hackett v. Richardson 632, 634 

Hadenv. Ware 671 

Haffley V. Maier 675 

Hagan v. Providence eto. R. R. 

Co 670 

Hagerstown Bank. 134 

Haggerty v. Juday 134 

Haines v. Atwood. 148 

Haines V. Beach 750, 751 

Haines V. Witmer 114 

Hairston v. Hairston 370 

Halev. Henrie 239 

Halev. Woods 610 

Hallv. Ashby 478 

Hall V. Brooks. 298 

Hall V. Goodson 543 

Hallv.Hewer 205 

Hall V. Hnntoon 610 

HaUv.Patridge 576,577 

Hallv. PUlow 67,68 

Hallv. State 447,450 

HaU V. Vanness 134 

Halleck V. Guy. 572, 585 

Halleck V. Moss 710 

Halley V. Oldham 335 

Hamaker v. Hamaker 280 

Hamblin v. Wamecke 374 

Hamilton V. McGaire 140 

Hamilton v. Summers 145 

Hamilton V. Ward 296, 388 

Hamilton County v. Garrett .... 302 

Hamilton, Estate of 710 

Hammond v. State 

...178, 179, 180, 181, 188, 189, 191 
Hammond V. Woodman. 141, 176, 570 

Hanby V. Tncker 492 

Hance V. Rnmming 629, 636 

Hancock V. Morgan, 343, 349, 351, 352 
Hand v. Grant. 573, 574, 581, 584, 600 
H. & G. N. R. R. Co. ▼. Winter. 295 

Hanna v. Barker 628, 629, 634 

Hansen v. Gregg 826, 327 

Haralson v. George. 68) 


Oases Cited. 

Hardaftaj ▼. flrnnnm 70 

Harding ▼. Spriimr 275 

Hardy V. Broadiuia 885 

Hardy ▼. Hunt 791 

Barker t. Dement 432, 543 

Harlan v. Smith 664 

Harmon v. Jaines 863 

Ifarnett v. Yielding 731 

iiarriman v. Queen Ina. Co 850 

Harris V. Clark 829 

Harris V. Hillman 532 

Harris ▼. McGregor 620 

Harris T. Plant 589 

Harrison v. McHeniy 675 

HartT. Burnett 746 

Harty. Gre|» 98» 860^ 868, 390 

Harty. HaiiSins 269 

HartT. Porter 836 

Hart ▼. Rensselaer eto. B. B. Co. 428 

Hartv. Western R.B. Co 665 

Hartman v. Munch 845 

Hartsfield 7. Harool^y 849 

Harvey ▼. Alexander 246 

Etervey v. Hoggins 249 

Harvey ▼. Thomas 606 

Harvey v. Thorpe 686^ 686, 687 

Harviev. Cammiaok.*.*. 526 

Haskins T. Wallet 818 

Hatch V. a«» 814 

Hatcher V. Hatcher 166 

Hathaway ▼. Baldwin 629 

Hathaway v. Qoodrieh. •••••••• 420 

Haatemannv. Gray.. •••••••••• 681 

Hawkins ▼.Kimball 684 

Hawkins v. Obyn 88 

Hawkins v. State • .'. 828 

Hawley v. Cramer 550 

Hayv. Bauffh 851 

Hayden ▼. Fatterson 159 

Hayden v. Westcott 786 

Hayes V. Stiger 678.582, 584 

HayleU ▼. Philadelphia ft Bead- 

ingB.R.Co 653 

Hays V.Wood 166 

Hayward ▼. Middleton 523 

Hayward v. Newton 248 

Haywood ▼. State 260 

Haieelton v. Putnam. 464 

Haaelton V. Week 467 

Haselton Coal Co. ▼. MegMget. . 515 

Ileadriokv.Toont 678, 579 

Healy v. Batemaa 415 

Heath v.HalL 829 

Heath V. State 451 

Heath V. Williams 774 

Heatherly ▼. Hadley 629 

Heaton ▼. Hodges 61 

Heavilon v. Fanners' Bank ..... 159 

Heed ▼. State 448, 450 

He^eman V. Western B. B. Corp. 429 

Heilbroner v. Douglas 401 

Helps V. Hereford 118 

Hempstead v. Johnson 318, 492 

Henaerson v. Kissam 324 


Hendenon v. Miimfng«688; 686, 6.17 

Henderson ▼. Ovortaii • • , 580 

Henderson ▼. State 448, 451 

Henry V. Ke;rB 076^680, f8l 

Henry v. Raiman 140 

Hcnsley v. Baker j^73 

Hepburn v. Anld ••«.. 733 

Herbemont ▼• Shaip 244 

Hemdon v. CKvuis 589 

Herr t. Herr 814 

Herring v. Wilndqgtoii eto. B. 

B.Co 655 

Herrington ▼. Hnbbaid 216 

Hemm V. De Bard 341 

Hershey ▼. Metqgar 159 

Hersom ▼•Hendenon 204 

Hester ▼. Wilkinson 899 

Hewitt ▼. Bankin. 845 

Hewson ▼. Deygert 667 

Heyde^. Heyde 719 

Heyev. Bolles 631 

Heyland V. Badger 675 

Heyneman ▼. Dannonbsnr 544 

Hibler ▼. McCartney 622, 56S 

Hickerson ▼. Benson 791 

Hiokey ▼.State 190^ 191 

Hickman ▼. Griffin 884 

Hicks ▼. Williams 67 

Hickson ▼. Bnoker 


Hiestand ▼. Knns 870 

Hileman ▼. Booslaagh 116,207 

HUW. Bellows 421 

▼. Encke. 

Hill ▼.Nash 857 

Hillv.State 407 

Hill V.Ward 567 

Hilkv.EUot 742 

Hiltabiddle ▼. State 498 

Hinesv. SUte 804 

HipweU ▼. Knight 784 

Hirsch V. Livingston 576 

Hitchcock V. Page 688 

Hizon V. Withand 205 

Hobart ▼. Abbot 751 

Hobbs ▼. Getohell 767 

Hoddeson G. & C. Ca ▼. Haasl* 

wood 486 

Hodge ▼. MitcheU 5S8 

Hodges ▼. Green 424 

Hodges^. Laird 680^ 531 

Hodges V. New England Screw 

Co 516 

Hodges V. Parker 688 

Hoen V. Simmons 465 

Hoffman V. partnghtb.. ••••••.. 8SI 

Hoffman V.Lee l.*)9 

Hoffman V. Noble 2:^0 

Hoffman v. Stone 770^ 771, 772 

Hoganv. Manners 844^846,349 

Hoge v. Currin 678,585 

Hoge V. Hoge •.•••• 115 

Hogg v.Ol^l.....«^«AAAa Itf 

HiUv. Epley 122 

Hillv. Ericke 478 

Gasbs CnxD. 



Hoit T. Beiiii<^ 67 

Hoitt V. Webb 948^ 850, 351 

Uolbrook v. Utica eto. IL B.. . . 223 
iloJden V. LiTerpool N. O. ft 0. 

Co 489 

Holde&T. Peace 688 

Holden ▼. Sackeifc 677 

Holdsworth ▼. Hunter 470 

Hole T. Bittenhooae 120, 122 

Holland ▼.Baker 213 

Holland t. City of San Fhuunaoo. 674 

Hollimaa ▼. Smith 848 

Hollingnrorth ▼. Stemiett 602 

HoUy ▼. Boston O. L. Go 488 

Holme ▼. Karsper 1899 747 

Holmes ▼. Shaker 672. 678, 674 

Holt ▼. Stesuner IfiaatonoiniLUl, 164 

Holtzinger ▼• Ediraida 674 

HoIyokeT. Haskins 866 

Honner t. Morton 89^90 

Hood ▼. N. Y. ft K. H. B. B. 

Co. 4an 

HookT. White 632 

Hooper ▼. Hall 814 

HopoT. PeoDle 181, 188 

Hopkins ▼. Bverett 630 

Hopkins t. Herwood. 674 

Hopkins ▼• Menal^ • 610 

Homv. Oole '. 660 

Horn T.Jones •••••• 764 

HomT. Lodington 466 

Homer ▼. Elflh 813 

Homer ▼. State Bank ol Indiana. 813 

HomsbjT. Lee 88^89 

Horr ▼. Baricer 792 

HotchklsBv. Clifton Air Core... 683 

Hoaghton, Appeal ol 724 

Hmisly ▼. LindMtr 673; 675 

Houston ▼. Moore 153, 154 

Houston eto. B. B. Co. ▼. Winter. 348 

Ho^raLrd t. Eennedy 404 

Howard ▼. MaishaU. 295 

Howard T. North 779 

Howaidv. State 191,447 

Howard t. Whetsone Township. 50 

Howe ▼. Lawrenoe. ... • . •• 210 

Howell V. Harvey. 216 

Howey ▼. Qoings 314 

Howser t. Commonwealth 452 

Hoytv. Howe 692 

Hubbard V. Barry. 620 

Hnbbell T. Ganady. 851 

Haber T. State. 183 

Hnbler v. Fallen . . 825 

HaffijLer v. Nat Bank of Monti- 
cello 630 

Hughes T. DeTlin 643 

Hughes ▼. State. 450 

Hughes, Case of 183 

Huguenin ▼. Letondal 528 

HuBv.Carter 635 

HuUv. HnU 214,400 

Humfrey v. Dale 553, 554 

Humphiey ▼. Donbass 432, 499 


Humphreys v. OniUow • fr49 

Humphreys v. Hamphrsys 561 

Humphreys v. McCall 6*29 

Hunsakerv. Borden.. ••• 746 

Hunt ▼. Lowell O. L. Oo. 488 

Hunt T. Boosmanisra. • • • 413 

Hunt V. Thnrman 797 

Hunter ▼. Windsor 417 

Hunting t. V^'^ter 676^ 679 

Huntington v. C. P. B. B. Co. . . 691 

HnntleyT. Whittlsr 167 

Hurt T. Blackburn 840 

Hurt ▼. McBeyiMlds 840 

Huston ▼.Curl 890 

Hutchins T. Baoon 814 

HiitohinsT. Hannn 78 

Hntehinson T. Bona ••• 794 

HutfdiinsonT. Horn • 883 

Hutohinson ▼• Kaily 196 

Hutchinson ▼• Per^y. 620 

Hyde T. Goodenoir. • 66 

Hyman T. Smith. • 686 

Hyndman ▼. Hyndaaa». •• 676 

Ihmssn t. Nsdey. 
IkenT. Oleniok.. 




Ingalls V. State 448,461 

Ingles T. Fattsnon. 466 

Ingraham ▼. Fostor 660 

Ingram ▼. Belk. • 872, 779 

Innii V. Steamer Ssnalor .... WK 651 

Inwood ▼. Twyne 212 

IrbyT.SUte 497 

Irsson ▼. Peaiman..*. • 114 

IrwinT.Ivers • 258 

IskyT. Stewart • 078^674 

Isreal T. Donjdas 224 

IvesY. Haara ••••••••• 822 

Ives ▼. Metcalf 95 

Ives V. Stirling 878 


Jackson VrAllen • 

Jackson ▼. Bsrtlstl*..*. 

Jackson ▼• Bronson •••« 

Jackson v. Chnrdiill 

Jackson ▼. Eddy 604 

Jackson ▼. Edwards 685 

Jackson ▼. Hoosel €42 

Jackson ▼. King ••.. 200 

Jackson ▼. Lodge 675 

Jackson T. MoOaU 539 

Jackson ▼• MoConnell S72| 275 

Jackson v. Miller • 421 

Jackson V. Bobins 602 

Jackson T. Bntledge •••• 258 

Jaskaon ▼. Schuts 681 

Jackson v. Shipman : . . . . 547 

Jackson v. State 

ISf^ 183, 184, 186| 809 

Jackson v. Stembergh • • 777 

Jackson y. Walsh •... 650 

Jackaou y.Whitbeck 861 

Jackson v. Woodruff 61 

Jackson's Case • 620 


Cases Cited. 


Jaekaon Sharp CSonnty v. Holland 


Jagera ▼. Oriffin 581 

Jaggera v. Eatea 204 

Jamea V. Falorod 381, 390 

JTamea ▼. San Fnnoiaoo 670 

JTamea T. State 180,181, 182 

Jeffiwy ▼. Ficklin 791 

Jenninga ▼. Gaga 230 

Jenninga ▼. Gnuiam 581 

Jenninga ▼. Jenkina. 


Jenninga t. State 309 

Jenniaon v. j^pgood 373 

Jersey CitvGaaGKy.Dwiglit... 485 

Jeaaon ▼. Wright 114 

Jeasup ▼. Johnaon 333,384 

Jewett ▼. Miller 560,576,850 

Johnaon t. Brewera' F. L Co. of 

America 493 

Johnaon ▼. Boiford 399 

Johnaon v. CoUina 572 

Johnaon v. Commonwealth 

184,189, 190 

Johnaon v. Dodgaon 281 

Johnaon t. Evana 384, 434 

Johnaon y. Gorham 603 

Johnson t. Granger 322 

Johnaon v. Hart 275 

Johnaon v. Habbell 97, 322, 465 

Johnaon v. Jenninga 605 

Johnaon v. Long 340 

Johnson v. May 345 

Johnaon y. Midland R'y Co 620 

JohnHon y. Mitchell 330 

Johnson y. Moaer 350 

Johnson y. Municipality . . .607, 509 

Johnaon y. Patterson 184 

Johnson y. Richardson 344 

Johnaon y. Sherman 675 

Johnson t. Yancev 207 

Johnston y. Powell % 341 

Johnston t. Ruaaell 791 

Johnstone y. Beattie 3G5 

Jones y. City of Petalnma .. .631, 634 

Jones y. Haya 616 

Jonea y. Grant 586 

Jones y. Judkina 675 

Jones y. Lewis 102 

Jones y. Morgan 109 

Jones y. People 451, 452 

Jones y. Perkina. . • 413 

Jones y. Pitcher 621 

Jones y. Read 645 

Jones y. State 447, 449 

Jones y. Taylor 67, 68, 335 

Jones y. Terry 605 

Jones y. Thomaa 156 

Jones y. Wamook 672, 673, 674 

Jonea y. Weatherabee SC3 

Jonea v. Witler 329 

Jordan y. Commonwealth 

179,188, 189 

JoMan ▼. Oovqr 786,787 


Jordan y. Poillon 676, 676 

Jourdan y. Jounlan 786 

Juzan y. Toalmin 414 

Eabley. MitcheU 437 

Kainy. Smith 429 

Eamlah y. Salter 636 

Kauaga y. Taylor 84 

Raster y. Mo Williams 350 

Kauffman y. Myer ••• 741 

Kavanangh y. Thompaon. . . .546, 558 

Kay y. Chnrchill 636 

Kearly y. Duncan 264 

Eeeoh y. Sanford 600 

Keith y. Hindman 853 

Keithley y. Bonun • 777 

Kellogg T. Baker 636 

Kellogg T. Dickinaon 424 

Kellogg, Ex parte 56 

Kelly y. Baker 849,850 

Kelly y. Commonwealtii ••••.... 136 

Kempv. Porter ••... 530 

Kendall V. Ruaaell 623 

Kendall y. Vallejo 697 

Kennedy, People ex raL« ▼• Man- 
hattan G. L.Co.... ••••••••.. 488 

Kenty.Laffan 064,665 

Kentucky Bank y. ComlMi 130 

Ken worthy y. Hopklna . • • 470 

Kercheyal y. Doty 465 

Kerry.Day 465 

Ketchum y. Zerega 829, 630, 637 

Keyser's Appeal 603 

Kilburn y. Doming 41C» 

Kidd y. Temple 675 

Kimbal y. Plant 671 

Kimball y. lyes.... •••••• 559 

Kimball y. Rutland eto. B. B. . . 622 

Kimble V. State 178 

King y. Gunnison 646, 64»» 

King V. Holm 526 

King V.Ray 628,634 

King's Appeal, Henry L 150 

Kingman v. Gloyer 244 

Kingsley y. Elingsley 346 

Kirby y. Harrison 739 

Kirstein v. Madden 634 

Kity.Stote 181, 182 

Kitchen V. Wilson 631 

Klenk y. Knoble 849» 861 

Klockenbaum y. Pieraon. . • 748 

Knewland'sCaae... 187 

Knickerbocker y. People 

448,450, 462 

Knighty. Fkir 666^667 

Knight y. Halaey 526 

Knight y. Moloney 681 

Knight V. Vardeman 616 

Knisely V. Williama 330 

Knoll y. Har>'ey 465 

Knowlea y. Dow 523 

Rnowles y. Lawton 754 

Knowlea y. Yeatea 724 

Kohler v. Kohler 578 

Cases Cuxd. 



Soppenhaffer t. Imaoi 694 

Ko6>''bader v. Spotte. 575 

Kraui&naii ▼. GreiBemflr 291 

Kresin v. Maa 352 

Kring ▼. Green 599 

Karz V. Bnuoh 850^851 

KaykendaU v. MoDonald. . .291, 333 

Kyle ▼. Mays 543 

Kyner ▼. Sboww 146 

Ladd ▼. Blnnt 401 

Udd T. ariawold 210 

Lodd Y. Stevenson 697 

Udne ▼. D. & M. a. &. Go 675 

Lafian v. Holmee 685 

LaEin y. Willard 298» 717 

Lagrave y. Merle 442 

Lammer, In re 350 

LaneY. Cotton 520 

Lane y. Kinff 157 

Lane V. LevuliaB 237 

Lang v. Brown 561 

Tiangton Y. Horton 431 

Langworthy y. Little 68, 70, 72 

Langyher y. Patterson 582 

Lanier Y. Hill ^ 526 

Lanigan v. N. Y. G. L. Co 489 

Lannen y. Albany G. L. Co 489 

Lantz V. Worthington 603 

Larkina y. Biddle 560 

Laaghlin v. Wright 350 

Lduighnian y. Thompeon 581 

Lavassar y. Washbnme 405 

Law Y. Commonwealth 497, 498 

Law Y. Patterson 360, 361 

Lawrence y. Cornell 577 

Lawrence y. Derby 635, 636 

Lawrence y. French 504 

Lawrence v. Kittridge 370 

Lawrence y. Lohr. 122 

LawBon y. Lawson 205 

LawBonY. State 739 

Lay Y. LawBOD. 535 

Locell Y. Lacell 350 

Leach y. Boynton. 627f 635 

Leach Y. Perkins 523 

Ledyard Y. PhiUips 576,577 

LecY.Dean 121 

Lee Y. Ki^sbnry 605 

Leoch Y. mU 146» 147 

Leffingwell y. Warran 478 

Lefi&naa Y. Flanigan 122 

Leggett Y. Steto 451 

LebmberffY. Bibertsteiii 394 

Leigh Y. Uodm 567 

Leighton Y. Wales 677 

TiBinhan t. Hamann 577 

Lemayne y. Stanley 4fl0» 440 

Lemmon y. Hanley 341 

TiiinihaB t. Hamftan 580 

LesUe Y. Guthrie. 431 

Lewis Y. Acker 029, 630 

Lewis Y.Harris 528 

Lewis Y. Harvey 148 

^kK. Dao. Toxm 1X1— • 

Lewis V. Lyman 431 

LeiR^Y. Hoes 102 

Lewis V. State 447 

Lewis V. Taylor 290 

Lewis v. Woods. 739 

Lidgerwood M|g> Co. v. Baird. . 


Life & Fire Ins. Co v. Mechanics* 

Fire Ins. Co 567 

lighty Y. Shorb 336,337 

Lillardv. Puckett 575 

Lincoln v. Edgeoonrt 74 

Lindsay v. Fay 478 

linfield v. Old Colony R. E. Corp. 429 
Lipford Y. Charlotte & South 

Carolina R. R. Co 232 

lisle, Goodright dem. v. Pullin . . 1 15 

Littell v. Zonte 437 

Little v. Harvey 599, 602, 699 

Little v. Martin 505 

Littlefield V. Tinsley 341 

Littleton v. Richardson 404 

Livingston v. Hammer 627, 636 

Livingston v. Kettelle. 717, 787 

Livinsston y. Van Ingen 153 

Lloyd V. Boms 631, 635 

Lloyd v. CaUett 734 

Lloyd V. Mayor eto. of New York 

Lloyd V. Washington G. L. Co. .' 489 

Lobdell V. Simpson 774 

Lockhart v. Cameron 557 

Lodge Y. Patterson 360 

Logan V. Fairlie 561 

Lord v. Chadbonme 605 

Lord V. Morris 675 

Lord V. Ocean Bank 60S 

Lorillard v. Town of Monroe.422, 511 

Long V. Carson 213 

Long V. Hickingbottom 230 

Long V. State 

178, 179, 182, 185, 186, 187, 188, 189 
Lons v. Weller. . . .579, 580, 583, 584 
London v. Robertson. . .57^ 574, 646 

Love V. Robertson 399 

Lowe Y. Beckwith 237 

Lowe Y. Peers 677 

Lowell v. Shannon 351 

Lowndes v. Dickerson 261 

Lowremore v. Berry 543 

Lowry v. Bradley 374 

Lncas v. N. Y. Cent R. R. Co. . 77 

Lnckette v. Townsend 254 

Lnckie v. McGlssson. 341 

Lndvick V. Huntsinger 337 

Ludwell v. Newman 504 

Lnningv. State 176 

Lnpton V.White 772 

Lyman V. Windsor 417 

Lynch v. Baxter S40, 645, 647 

Lynn v. Le Gierse 885 

Lyon Y. BoUing 102 

Lyons v. Sand&d 761, 752 

Lytle V. 


Gases Gtexd. 

Kacanley ▼• BtoimII elo« Print- 
ing Co 88^683,636 

MacCabe y. Blymyn 70 

Maoey.Datton 872 

Mack ▼. Wetder 675 

MackkUey'i Case 158 

Maclay v. Sands 631 

Biaoomber ▼. Burkar 473 

MageeT.Bioe 341 

liahoney ▼. Pao]^ 182, 188, 185 

Mallet ▼. UnotoSam Gold ft Sil- 
ver Mining Go 620 

Mandeyilto ▼. SolooMB 141 

Mandaville ▼. WaU 225 

MannT. Bogen 846^347 

Manning ▼. MitdMiMB 260 

BlanningT. Waul.... 251 

MannylOOi Y. VtmA • 681 

MMleaT. Maplaa 

Mali^T.Stona 245, 

Marine Dook eto. Ina. Go. t. Mb> 

Millan 658 

Marriot ▼• Da^qr 741 

Maiahv. Loader 487 

MaiahY. Maiah 207 

Maiahv.Bioe 741 

ManhaU ▼. bnej 505 

Martel ▼. Somen 825 

Martendale Y. FoUett 548 

Martin Y. Dnffi^Y 148 

Martin Y. HiU 65^67,68 

Martin Y. Hughes 852 

Martin Y.Iyes 119 

Martin Y. Jaefann 275 

Martin Y. Latta 214 

Martin Y. Loflaod 599 

Martin Y. Mayor of Brooklyn.... 509 

Martin Y. MerriU 458 

Martin Y. Potter 70 

liartin Y. Smith 196 

Biartin Y. State 809 

Martin y. Tomer 581 

Martini Y. Colea 793 

Manrin y. Dennison 403 

Mason Y. Keeling 259 

Mason Y. Thomas 575^ 581 

Mason Y. Thompson 251 

Mason Y.Waita 790 

Mason's Oase 185, 191 

Maasey Y. Ins. Go. 134 

Massey Y. Thompson 244 

Masson Y. BoYet 582» 583 

Master Y. Miller 548 

Mateer y. Brown 651 

Mathews Y. Chrisman 237 

Mathews Y. SUte 178 

Matlaok Y. Boberts 115 

Matlock Y. Bigbee 583 

Biatteson Y. Ellsworth 549 

MaUhews Y. Douthitt 545 

Biatthews Y. Sands. 568 

BCatthews Y. Wame 599 

Biattocks V. Lyman 692 

Mattoz Y. Bfiattoz 723, 724 

Manrer Y. BianhaB ••••• 114 

Manry Y. Gooper 297 

May Y.Milton Ill 

Mayfield Y. BCaaaden 850 

Mayho Y. Gotton 852 

Mayor etc of N. T. y. BidleY... 508 
Biayor eto. of N. Y. y. Fnm 

509, 564 

Mayor of Baltimore y. Leflbrman. 675 
Biayorof KinntonY.Hotner.... 539 

MoAdams y. Keith. 675 

McAfee Y. State 449 

McAlisterY. Smith 66^ 84 

MoArtfaQrY.Garrie.620b827«555, 558 

MoGaB Y. Ghambsriain 222 

MoGartn^Y. King: 57% 574 

MoGartnejY. Shepaid 471 

MoGtftn^ Y. Stat* 178 

MoGaskmr ▼• Oimir. 482 

MoGollom Y. Smith 870 

MoGdUnmY. HnbbsrI.... 818 

MoGomhs y. Town Oouoil of 

Akron 508 

MoGonnanghy y. Baztsr. . • . .847, 350 

MoGord Y. Seale . 739 

McGormiek Y. Bai^y 825,632 

McGormiek Y. MoNeQ 400 

McGoy Y. Galloway 61 

McGoy Y. Morrow 540 

McCoyy.State 448 

MoCloBkeyY. People 188, 184 

McClurken Y. MeOliirkan 846 

MoGreary Y. Turk 567 

MoCreliss Y. Hinkle. 593 

MoGrinunin y. Gooper 880 

MoGaUoch Y. Gowhw 139 

MeGullongh y. Biayor of &ook- 

lyn 714 

MoGoneY. Norwich a^ Gas Go. 488 

McGarry Y. Hooper 544 

McDanial Y. Biaoe 853 

McDaniel Y. State 178 

McDaoiel Ik Steele 506 

McDaniel*8 Gase 178 

McDaniehiY. Ladham 407,409 

McDermot y. MoBennot • • • .575^ 576 

McDonald Y. Gampbell 353 

McDowell Y. Goldsmith 196 

McDowell Y Jefferson 699 

McElmurray y. Ardis 239 

McEntee y. State 179, 190, 191 

McFarland y. Lester . . .627, 635, 636 

McGee Y. Stone. 650 

McQehee ▼. McGehee 530 

McGhee Y. EUis 575 

McQlynn Y. Billinn. 409 

McGowan y. Ward. 547 

McQrath Y. St Glair 344 

McGaire Y. Shelby 543 

Mcintosh Y. Greenwood 827 

McKeaggy.GoUehan 564 

McKecy.Jndd 380 

McKee y. MoEinley 115 

McKee Y. Wilcox. 844,845 

Casks Cmix 


If oKmh T. BeraplMid 122 

If cKeosie ▼. WashlDgfeoii I^e Lis. 

Co 681 

licKernaAT.Neff. 676 

MeKyruig ▼. BoU 608 

HcLuria t. Spalding 697 

McLangUin T. PUtte 787 

MeLaariD ▼. ThompMm. 706 

IfeLond t. Selby 746 

McHahoov. Sloan 230 

If oACumfl Y. Cbmpbdl 845 

McManm ▼, KeJtb 072 

MeMiehMl T. ICeDmMtt. 833 

If eMillaa Y. BudMidi 674 

HoMiOaii T.ViMhflr 676 

If oMfllHa T. WuBcr 874 

MeliUkn y. W«lil« 478 

lioMini Y. MaYM 618^620 

MeUiitrie Y. IMbrmkk 166 

MeNntt Y. StnjhooL 160 

IfcPhafl Y. HjBtt 627 

MePlMfwin Y. Omlilt 638 

If oPhctmi Y. lidPlMnai 884 

McQneoi Y. Stele 188,180 

MeBeyiMlds Y. State S80 

Mead y. MHbImU 678 

Heed Y. Buidolph 88^803 

If eedor Y. Sotab^ 238 

Ifearca y. OomniiaBioiMfB of ^VHl- 

miqgton 608,664 

IfeaaiiTe Y. Gee 116 

Ifeehan y. Hariem flavii^ Bank 628 

Ueek Y. MeClnre 676 

MeekaY. Hahn 710 

Meeka Y. Vaanatt 710 

Mellen Y. Boannaa IM^ 646 

Melvin Y. Ead^. 178 

Melton Y. Andrews ' 847 

UeMn Y. PlroprietoiB 318 

Menard Y. Seadder. 237 

MenoiU[h*B Appeal 166 

Merced Mining Oo. y. nwnont. 643 

MeroerY.HalL 884 

Mercier Y. Cihaae 860 

Merohante' Bank y, ThoB i paon 


Meredith Y. Andrca 863 

Merlin y. Manning 

MerriU Y. Smith 

Merriman y. Hnndrad of CAdp- 

penham ..••••••••••••• 186 

Merrid Y. Claaon 282 

Merry ▼. Boetwidc 883 

Measer v. Woodman 797 

MethardY. State 462 

Methery Y. Walker 848; 862 

MetiBE V. Peamll 638; 684, 638 

Menz V. Anthony 394 

Miantonomi, The 151 

Milam Co. v. Bobertaon 314 

MUea Y. StBYena 340 

MillenY. Boannan 673» 584 

Maier V. Alexander 816, 318 

MiUoTY. Baker 4C6 

Mi]]erY!c6nklta40o!!I.*!'!.'! 210 

MillerY. BitUl 160,210 

MiUerr. Fitoh 573 

MillerY.Jonea 642 

MiUerY.Long 335 

Miller Y. MaSea 693 

Miller Y. MoBair 625 

Miller Y. Menka 863 

MillerY. Miller S16;f76^884 

MilteY.Baoe 828 

BfillerY.Beed 648 

Bfiller Y. State 188 

Miller Y. Soita 424 

Millinr Y. Socg 122 

MillilenY. Bnnm. 

.. 814 

.. 675 



Milb Y. Banay 

MOla Y. Qfaal. 

Milla Y. Tbwn of J< 

688; 630^633 

MatonY.Baden 668 

Milwankea ft IL B. B. Ca. y. 

MilwankeaftW.B.B.Oik... 488 

MimmaY. State 448 

Minter Y.Dent 244 

Mieaonri ▼. Wella 603 

Mitchell Y. Bowen 710 

Mitchell Y. Bvana 872 

Mitchell Y. Haaen 646 

MitcheU Y. lipe 778 

Mitchell Y. Marr 899 

MitohellY. State 804 

MitcheU Y. Wioateir 431 

Mitford Y. Ifitfofd 88 

Mohler^ Appeal • 608 

Moke ft Bra Y. Biaekate 314 

Monagfaan Y* Small 575^ 676 

Monarqne y. Mooarqne 575, 576 

MonkhooaeY. Hay.i 431 

Montague ▼. Bichardaon 416 

Monte AUigre, The 678 

Montgomery y. TnU 676, 764 

Montgomery y. Wi|^t 72 

Moody Y. naming 714 

Moor Y. BhgraYe 661 

Moorev. Akm 573, 674 

Moore y. Andeia 880, 675 

Moore Y. Bettia 655 

Moore Y. Fita Bandolph 822 

Moore y. Haatinga ft St. L. O. 

Co 489 

Moore Y. Honston 162, 153 

Moore y. niinoia 153 

Moore V. Platte Coonty 677 

Moore y. Baymond 830 

Moore y. Beai'ea 345 

Moore ▼. Rice 325 

Moore y. Sohnlta 647 

Moore Y. Whitia 851, 852 

Moreland ▼• Bamhart 29f 

Mortal Y. Swift 141 

Morey y. Metropolitan O. L. Oo. 488 


Casss Citbd. 

MorgMiT. Gfoff 791 

Morgaa t. Steuns.MOb U^ M7, 348 

Moraui T. Vaiiok 466 

Mortey Y. Wright 90 

MorriB ▼. Barroii|^ 95 

Morria v. Corry. . . • • 605 

Morris T. Mowatt 075» 576 

McMrrisT. Furker 628^ 634 

Morris ▼. Phelps 121 

Mori is T. Ststo 327 

Morrow ▼. Cooflsa .....627 

MorrowT.Reed 473 

MorrowT.Weed 700 

iMorse ▼. Gamer 688 

Mortlock V. BuUer 456 

Morton T. Jaokion 635 

Morton v. Morton. 139 

Moses ▼. Boston & Mains B.B.. 291 

Modsy. McCaU 275 

Mosflv.Shesr 698 

Mottv. Burnett 637 

Mount ▼. Brown..: 586 

Mountosstie v. Moe^. • . . - 576 

Mo^riquand ▼. HaiS 851 

Mower ▼. Kip ..599,600 

Mnlrv. Craiff 575 

Mnlhally. i^dnn 96 

Mumford v. Osnty 69 

Munioipalily No. 1 ▼. Gaslight 

Co 489 

Mann v. Bamum 636 

Murch ▼. Cooper 737 

Munroe v. Concord R. Govp 429 

Murchison y. Plyler. 347 

Murphy v. Murphy 97 

Murphy T. People 188, 191 

Murphy V. Richardson 122 

Murray v. Hay 562 

Murrayv.SellB 346 

Mnschamp v, Lsnoastsr etc B. 

R. Co 232 

Mutual Life Ins. Co. T. Baloh .. . 585 

Myers y.Mott 703 

MyersY. White 155 

Myer's Appeal 599 

MyrickY.BiU 846 

Mytinger y. Springsr •••• .... 791 

NagleY. Macy. • 675 

NagleY.NagIs 723 

XealY. Coe M7, 348 

Needham y. Branson 275 

Neil Y. Case 549 

NeUlY.Keese 392 

Nelson y. Iverson. 245»564 

Nelson v. Vermont oto. & & Go. 429 

Nelthrop Y. Holgats 457 

Nesmith y. Drum 226 

Newall Y. Wrij^t 659 

Newberry y. NowbsRy 598 

Newbrandt Y. Stats 448 

New Bmnswick Stsamlwat sito. 

Co. Y. Tleis 522 

KeweU Y. Maybsny 549 

Newell, Ex parts 673 

Newman y. Chapman 267* 269 

Now Orleans G. L, ft Bw Co. y. 

Paulding 486 

Newsom y Anderson. 467 

N. Y. a & H. R. R. Co. Y. Metro- 

politsn G. L. Co 486 

Nicely Y. Boylea 314 

Nichols Y. Jones. . .628b 686^ 637, 696 

NioholB Y. Lumpkin 637 

Nichols Y. Mass 68 

Nichols Y. OYeraoker 742 

Nichols ▼. Patten 894, 779 

Nicholson y. N. Y. sto. R. R. Co. 384 

Niell y. Morley 108 

Nimms y. Commonwealth 695 

Nobley. Cromwell 578,080 

Noel Y.White 141 

NoUny.Reed 851 

Norden'sCase 182 

Norris, Estate of 207 

Norton Y. Doherty 605 

Norton y. Warner 631 

North Penn. Coal Co.'s Appeal. . 128 

Northwood Y. BaRington 767 

Nye y. Denny 62 

OakesY. Hill 421 

O'Connor y. Blake 779 

Oconto Ca y. Jerraid. • . , 478 

Offiitt y. FlaKg 65,67,68,72 

Owen y. Slatter. 572 

Owsley Y. Smith 575 

Ogden y. Gibbons 154 

Ogden y. Raymond 610 

Ogden V. Saunders 153, 154 

Ogletree Y. State 515 

O^eary. De Goesbrisnd 424 

Ohio Life Ins. & Trust Co. y. Mer- 
chants' etc. Co 516, 528 

Oil City Gas Co. y. Robinson.... 489 

Oland y. Burdwiok. 158 

Old Colony R. R. Corp. y. Ryans 322 

Oldham y. Ledbetter 790 

Oliver y. Hondlet 610 

Oliver y. Snowden 347, 353 

Oliver y. State 516 

Ordy.MoEee 662,663 

Ord Y. Steamer Unde Sam 


Oregonian RV Co. y. Oregon R*y 

fNay. Co 627, &, 629, 636 

Ormsby y. Teny 579 

Orry. Shraft 845,846,849 

OrwTY.Stonns 262 

Ortley y. MeaMre 197 

Osbom Y. Phelps 465 

Osborne Y. Endioott 61 

Osmond, Lewis ex dem. y. Wal- 
ters 115 

Ostsrbsfg ▼• Unkm Tmat Go. . . 


Osterhont y. Shosmakar. 
Ostrom Y. 

Gases Cnxn. 


• ••••( 

Ow«BT. Slattar 



Pteak T. Mimr 0te. o(K. T... 

Pkdur V. Gnnwlai • 

Pago T. Boberti 

P!i£i0T. Meikr 

Palmer T. Taftas 

Pariay. Vaa 430,431 

P^iahT.Eafler 478 

Pukv.Hopiina 249 

Ptoker V. Hiaa 259 

Parker T. Plurmele 727 

Pkrker T. PtvUow 673 

Plu-ker T. Pjropriflton eto. . . .301, 383 

Pkrker V. State 190 

Pkrkerv. Swan 318 

Parker V. Walrod 466 

Parkin ▼. Thoroald 731 

Pkrka T. Hisda 698 

ParkaT.Mooie 404 

Ftoka^Iiire 346 

Pteiill T. MoKmlex 465 

Paraon r. Lefiforta 114 

Pariee T. Stewart 346 

Ptftridge v. Forsyth 522 

Fateraon O. L. Go. ▼. Brady. ... 486 

Patteraon ▼. Taah 793 

Patton ▼. Kennedy 698 

Platton T. Qoldiboroagh 139 

Pfttton ▼. Mitfrath 523 

Partridge V. McKinney 620 

PaalT.Slaaoo 779 

Panlett v. Peabody 682 

Pazaon y. Lefferta 115 

Peaae ▼. Odenkiroheii. 67 

Peat's Gbw 18Q, 189 

Peck y. CSaipenter 363 

Peck y. Omistook 478 

Peck y. Hubbard 216 

Pcckv.Land 333 

Pelauy. De Beyard 844, 345 

Pelbman y. Pinkingill . , > 639 

Pelletreaa y. Jackm 93 

Pendleton y. Button 786 

Pendleton y. Galloway 313 

Penniman y. Hartshorn 282 

Pennington y. Yell 505 

Pennock V. Hart 702 

Penn. Salt Mf^. Co. y. Neel ... 141 

Penny y. Martin 411 

Penobscot Boom Corporation y. 

Lamson 516 

Penrose y. Griffith 140 

Penwarien ▼. Ching 526^539 

Pentz y. Stanton 608 

People y. Ah Ki 


People y. Antonio. 447 

People y. Beck 181 

People V. Brenham .764, 765 

People y. Chambers. . . .447, 448, 451 
Pe^y.Qongh 182 

P.'pleT.Oova 179 

People y. Cowka. . .7581 780^ 764, 767 

People y. Crayeroft 381 

People y. Cunningham. 384 

People y. Curtis 631 

People y. Dayia 1701172,497 

People T. Dofwliag 451 

People y. BastoQ 667 

People y. Enooh 306,306,808 

People V. Getty 447»449,450 

Peopley.GiU 447 

People y. Gordon 452 

People y. HaU 184, 189 

People y. Hooghtaling 790 

People y. Hnr&y 447,450 

Peopley. Jones 190, 191 

People y. Keefer 188 

People y. Kelly 447,450 

Peopley. Kendall 432,497 

People y. Kniokerbooker life Ins. 

Co.. 676,676 

People y. Leyison 448, 451 

People y. Loucks 714 

People y. Martin. 769 

People y. McCumber 


People y. McDaniels 186, 187 

Peopley. McGinty 183, 184 

People y. Mulvane 447 

People y. Nelson 178, 181, 101 

People y. Noregea 448 

People y. Payne 184 

Peopley. Peabody 170, 172 

Peopley. Porter 764,767 

People y. Bandolph 498 

People y. Riehrooiid 499 

People y. Rodondo 447 

People y. Roaborough 724, 769 

People y. Runkle 759 

People V. Sander 451 

People y. Schuyler 420 

People y. Shuler 181, 182 

People y. Su^ryison. 746 

People y. Swinford 450 

People y. Teller 49^) 

People y. Titherington 449 

People V. Townsend 497 

People y. Utica Ins. Co. 513, 514 

People y. Vice 179, 180, 181, 100 

People V. Walker 450 

People V. Wells 769 

People y. Whitesides 767 

People y. Whitson 450 

People y. Williams. 450 

People y. Wilson 447 

People V. Wright 189 

Perkins v. Barnes 698 

Perkins y. Qaigley 352 

Perkins v. Winter 579, 681 

Perkins y. Wright 735 

Perley V. Chandler 135 

Perreira y. Jopp 470 

Perry v. Ames 724 

Perry y. City of Worosstar. • • . • 670 


Cases Citedi 

P«rryv. state 460 

FBruIronCo., Bz perto 600,4M)2 

PMerkin T. InloM 642 

Peton y. demflnti 890 

Peien v. jMDMtown Bridge Co. 


Pettee V. Prcmt 830 

Pettee v. Be&k of WhitehaU.... 418 

Pettiboiie Y. Stereos 883 

Pettit ▼. Fettit 672 

Pettit V. Shepheid 602, 600 

Peyton T. Barton 122 

PUttv.Brown 728 

PleaaanU y. Pendleton 706 

PleydeU y. Earl of Povohaeter. . 248 

Plamey. Sewaid M| 020 

Phekn y. Olney 668 

Phelps ▼. Mayer • 667 

Phelps T. Bocnsgr 84^860 

Phmber y. MfttsoQ 124 

Philips y. Green 246 

Philips y. Hnth 703 

Philleoy. Sanlord 522 

Philleoy. Smalley 848 

Phillips T. BUir 122 

Phillips T. Bristol 478 

PhiUipay. Coffee 688 

Phillips y. Oregg 

Phillips y. HaUT. 466 

Phillips Iimeri<^ Aoadsny y. 

Davis an, 878 

PhilliaUrk y. PlnckweU 528 

Phinney y. Baldwin 66 

Phip^ y. Jones 879 

PhoBnixville y. Phoeniz Iroii Co. • 137 

Piokard y. Boberts 88 

Piokard y. Sears 228 

Piokens y. Tarborongh 830 

Pickering y. Bnsh 230 

Pieioe y. Andrews 660 

Piensy ▼. Sabin 620 

Pierson y. Annstrong 413 

Pleison y. Vlbken 114 

Pikey.Baoon 291 

Pikey.Baloh 881 

Pillow ▼. Roberts 477 

Pillow y. Thomas 258 

Pillsbory y. Looks 264 

Pinckaid y. Pinckard 593 

Piper y. Manny • 251 

Pistole y. Street 546 

Pitman y. Kintner 610 

Pittv.VUey 321 

Pittoy.Bailard 478 

Pitts y. Hendriz 166 

PUnters' Bank y. Sharp 645 

Pollard y. Merrill 559 

Poolv. HodneU 678, 674, 683 

Poole y. Qerrard 844 

Poorman y. Mills 675 

Porter y. Allen 124 

Portery. PteiuonnocMfg. Co.... 567 

Porter y. Porter 562 

Bortisy.HiU 863 

Posty. Leet • 

Potinger y. Wightman 866^866 

Potter y. Taggart 458 

Potter y. Washbnm 404 

Potto y. 1>ayenport. . .'• ,844^ 840^ 848 

Potto y. Smith 661 

Potto'sAppeal .* 116 

Pottstown Gas Co. y. Mnrphy . . . 480 
Potteyille Boron^ y. Konr^^ 

Township 116 

PoweUy.&ok 826 

Powell y. Powell 867 

Powell y. Williama a6» 

Powers y. Borne, Watsrtowa, 4 

O. & R. Co. .682» 684, 88C^ 886, 687 

Fi^teU y. Spenosr 140 

Pntty.Pieroe 478 

Pkatty.WiUht 816 

PhkttMfgi Co. ▼• Jofdan Iroiieta 

Co 688; 686 

Piresoott y. Davis 615 

Plresoott y. Hall 700 

Prasoott y. Neyen 880 

Presley y. Holmes 814 

Price y. Alexander 688 

Pricey.Blont 841 

Price y. Commonwealth 448 

Pricey. Morgan 156 

Pricey. BivenideL. ft L Co.... 714 

Pricey. White 622 

Priest y. Union Osnal Co 778 

PriggY. Penn 158 

Prime, Matter of 66 

Prindle T. Anderson 467 

Printnp y. MitoheU 845» 665 

Prince y. Thompson 882 

Proctor y. PhMstor 721 

Piyor y. Downqr ••••«.. 710 

Piudew y. Jaokaon. . • 89 

PnrdTT.Dovle •••••••• 

Parsley y. Morrisoa ••••••• 

Pntnam Y. Pntnam •••• 

Qoaries y. Qnarisa ••••••• 

Qneeny.Byans 460 

Qoigley y. Goriiam •••• 415 

Qainy. Moors 78 

Quinny. Green • 

Badcliff y. Mayor etc of Brook- 
lyn 652 

Radde y. Bnolq^ber 694 

Raglandy. Bo^ 852 

Ragsdale y, Booker 205 

Rand v. Sargent 467 

Randal y. Elder 862 

Randall y. Van Vechten.608, 608, 610 

Ranger y. Goodrich 475 

Rankin y. Scott '. 601 

Rankin y. Simpson 465 

Rawlra'sCase IIS 

Ray,£zp'^rte 801 

Reek's Estate 860 

Redfield ft B. M. Co. y. J>J9U%. . 141 

Cases Cited. 


▼.MwuBiaoC HMdIort.... 747 

BT.Bil&v 641 

Keeae T. Oresiiam 693 

Hef. Prot D«toh Chiif«li t. Moit 380 

Regina T. Baron. 191 

K«giiia T. Brinuk^w 498 

H^inftv.dMtffar 261 

BegiDay.Oxy 281 

Kegiiuk V. GiMkMt 187 

Kegioa T. Oowhusi 451 

Rflgiiia ▼. Ganutaai 261 

Begiiia Y. fianii 450 

Hegina T. H6mL 261 

EegiiMT. Ji«uA^|i...l79, 181. 189 

Hcgioa T. HflBi7 187 

RegiDAT. Hn^ML 450 

Ragiiia T. JovdBB 498 

lUsgmaT.Haite 497 

R^iiia T. lloOitfk 191 

R^ma T. Mcvm. 180 

BcginaT. Phflipt 498 

ftegma T. PrertOA 444 

R^iiia T. BolMnnB 188 

BfigiiiaT.BM 261 

Rcgina T. lUohaidfl. 187 

BflgiDa ▼. Skickto 261 

RagtnaT. Smitli 180 

RflgiD* T. Stringw 187 

Bfigina Y. Thoitam 444 

BeginaY. Yampi0W 497t 499 

Begina Y. Walk 184 

Bcgina Y. Woodward. 188 

Be^UadY. QrwB 709 

Beigart** AppeaL 599 

B«mv Y. Qtyof Badna 478 

Ririnbaoh y. Walter 350 

Bemhart Y. Laate. 116 

Bemick Y. BattacflaU 644 

BennerY. BtaikofOaltoiAiA.... 663 

BedLeY. BMk* 847 

Beralk Y. KnoMT 346 

BezY. AbtataMi 461 

BezY.Adanoi 460 

BezY.Astley • 186 

Bex Y.Baker.... « 184 

BexY.Binglrr •••• 180 

Rex Y. Blacklnm 184,188 

Bex Y. Brooke 261 

a«x Y.Brown 186 

aex Y. Bnrdett 452 

3ex V. BortoD 462 

ftex Y. Oumon 179, 186 

a«x Y. Garpenter 639 

EexY.QaA 180 

Bex Y. Crowhnn* 462 

BexY.DiUej 461,452 

BexY. Dcma&Y 186,188 

Boxy. Bdwarda 180,187 

BexY.berton 186 

Bex Y. Elderahaw 498 

tax Y. Elmstead 186 

BaxY.Ewis 461,452 

1«Y. lUIOWB 182 

BasY. nmB 179, 180 

BexY. Fkanoia 181 

BexY. Poller... • 188,187 

Rex V. Gardner 187 

BexY. Gnoaa 183,184 

Bex Y. Gray.. 184,186 

Bex Y. Groonteidit 498 

BexY.Hall 189 

Bex Y. HanUtoB 188 

BexY. Harmaa 186 

BexY.Hamld 186 

BexY.HawUM 182; 188 

Bex Y. Hidonan 186 

BexY.Horaer 184 

Bex Y. InhiAiteBfti of Khig^ 

Laaglej 406 

Bexv.Jonea 186 

BexY.Lapier 171.182,185 

Rex Y. LongBooklij 539 

BexT. Loxdala 756 

Rex Y. Maoanky 184 

Bex ▼. Mansfield 460 

RexY. Maeon 177» 186 

Bexv. MoDankl 183 

Rex Y.Moore 185 

Bexv. Kewton 187 

Bex ▼. Owen 486,497 

Bex Y. Partridge 450 

BexY. Phflpoe ..180. 181 

BexY.Beane 186.187 

BexY.Bobin 18« 

Bex Y. Seyem ft Wye B'y >>. . . 713 

BexY. Simons 180, 186 

Bex Y.Smith ..461,497 

Bex Y. Sparrow... 756 

BexY.Spenoer 186 

BexY.Steward 184 

BexY. Taplin 186 

RexY.Wild 498 

Bex Y.Wilson 462 

Bex Y. Winkworth 186, 189 

Bex Y. York 488 

BexY. 450 

Beynolds Y. IngersolL 020 

Bex. SUvis, &Co'b Appeal 150 

Beynolds Y. Shnler. 466 

Reynolds y. Stuisberry 693 

Reynolds Y. White 230 

Rhode Island Gent Bank ▼ Den- 
forth 67,68 

Rhodes Y. Dntoher 686 

Rhodes y. McOormiek 350 

Rhodes Y.' Tarrence 534 

Rhodes v. Turner 53-n 636, 557 

Rhodes y. Warbnrton 660 

Rhodes Y. Williams 346 

Rider y. Dnvsl 330 

Riddlev. HiU 581 

Riddle Y. Vamom. 473 

Rice y. Gonrtis 70 

Richards y. Richards. 720 

Richardson Y. McNaltY 620 

Richardson y. Richardson 724 

Richardson y. Soott Biyer W. ft 
M.Co 714 


Gasxs Citeix 

Riohardaon ▼• Stroi^g. . . • 200 

Richardson t. Vicker. 673, 574 

Bichardaon ▼. Wilton 629,630 

Biohmond v. Smith 251 

Riohter v. MoMurray 627, 635 

Rioks 7. Dillahunty . . 572, 573 

RJAgs T. Martin 327 

Biggs ▼. PuraeU 576, 577> 586 

Ritoyy. Qriffin 61 

Riley ▼. Kepler 584 

Riley v.Pefl 846 

Rimington T. Camum. 114 

Ringgold V. Barley 374 

Riser ▼. Snondv 709 

Ritter ▼. Henahaw 575 

Rivanna NaT. Co. v. Dawson. . . . 516 

Riz V. McHenry. 703 

RobbT. Mann 645,647 

Robbins T. Baker 631 

Robbins v. Bonsoome. 225 

Robbins v. MoKnight 322 

Roberts V. Francis 269 

Roberts ▼. Halstead 331 

Roberts ▼. StAe 191,308 

Robertson t. Green 600 

Robertson ▼. Robertwm 138, 363 

Robertson ▼. Smith 414 

Robinson ▼. Cone 428 

Robinson T.Dnnmore 520 

Robinson v. Garth 390 

Robinson v. Justice 118 

Robinson v. Robinson 561 

Roby ▼. Hallook. 627, 636 

BobvY. Labuan 406 

Boohester Bank ▼. Jones 555 

Rochester White Lead Go. ▼. City 

of Bochester 507, 508, 509, 564 

Bockv. Heald 340 

Bockhill ▼. Spraggs 544 

Bockmore ▼. Uayenport 264 

Bockwell V. Hubbell 469 

Bodebaugh ▼. Sanks. 759 

Bodgers v. Jones 751 

Bodgers v. Smith 573, 574 

Bodman v. Bodman 684 

Boe V. Aistrana Ill 

Boev. Swart 600,699 

Bogers v. Brent 675 

Bogers Y. Evans 333,384 

Rogers v. Dickey 603 

Rogers v. Grider 272 

Rogers V. Heall 140 

Rogers v. Horn 575 

Rogers v. Huie 230 

Rogers v. McLean 575, 576, 578 

Rogers v. Bagland 352, 353 

Rogers ▼. Saunders 733, 734, 739 

Rohr V.Kindt 340 

Roland V. MUler 336 

Roll V. City of Indianapolis. .... 570 

Rollins V. Henry 573, 674 

Rood V. Now York & Erie B. B. 

Co 652 

Roof V. Bailroad Co 223 


Boot ▼. Franoh 228 

BoeeT.Oash 584 

Boee V. Estadillo 746 

Bosev.Hall 413 

Bosenberger t. Keller. 122 

Rosenthal ▼. Biayhogh 08 

Ross V. Turner 688 

Bossett V. Fisher 436 

Ross's Appeal 337 

Roussin V. Stewart 631, 633 

Bowe V. Moaes 249 

Roy V. Boy 442 

Boyallv. Lessee of Lisle 478 

Rover's Appeal 594 

Babey V. Bamett 562 

Rugg V. MerriU 473 

RnuTv. Norton 124 

Banyan v. Meraereaii 660 

Bonyon V. Groahon 70 

Bnpert V. Dantder 700 

Russell V. Men of Devoi 744 

Bntherford t. Jonea 314 

Byan v. Clanton 67, 68 

Ryan v. Dnnlap 676 

Byan t. Byan 723 

Sackett v. Twining. . . .873, 684^ 647 

Saddler V. Repnblio 32S 

Sahlinger v. People 448, 461 

Sahlman V. Mills 797 

Safford V. Wvckoff 515 

Sale V. Saonaers 91 

Sallade V. James 166,157 

Salmon V. Hoffman 840 

Saltonstall V. Riley 644 

Saltus T. Everett 230 

Samms v. Stewart 620 

Sampson v. Gazzam 5523, 552 

Sampson v. Ohlej^ 714^ 740 

Sampaonv. WiUiamaoQ 692 

Sanborn v. Colman 543 

Sanborn v. Hunt 473 

Sander v. Moming-atar 1 12 

Sanderson v. Jones 203 

Sanford v. Howard 473 

Sanford Manofaoturing Co. t, 

Wiggin 894,748 

San FrandscoGas Co. v. San Fran- 
cisco. . .625. 629, 631, 682, 638, 634 

Sarahas v. Fenlon 353 

Sargeant V. State Bank of Indiana. 645 

Sargent v. Adams 739 

Sargent v. Metcalf 230 

SartoriuB v. State 45) 

Satterlee v. Groat 520 

Satterlee v. Matthewson 525 

Savage v. Drake 473 

Savage v. Walahe 564 

Sawyer v. Haydon 769 

Sawyer v. Woodbury 605 

Sayre ▼. Gushing 630, 631, 632 

Schafer v. Farmers* & Mechanics' 

Bank 148 

Scheferling v. Huffman 690 

Cakes Cited. 


PuJiMBiMhiiin T. Metropoliteii G. 

KOo 488 

SdkindlBr V. State. 448 

SohmiBliiig y. KiiflMl 465 

SchoUflnbergor T, Nehf 140,147 

Geh^mao v. Boston eto.Bi.B.00. 429 

School Dineton y. JamM 

500^ 068| 870 

SchoffBn y. Tiandiior 850,851 

SehwartB y. Drydn 575 

SMsott y. Alted 292 

Soott y. BcBld 575 

Soott y. Dudb. 581 

Soott y. Dyer 294,295 

Soott y. Freelaiid 650 

Scotty. Howaid 002 

Soott'a Eotiite 694 

Seaman y. Hioka 570» 677 

Scan y. GSty of BoatOB. 878 

Sean y. HotohUa 616 

Seayer y. Fhelpa • 200 

Seayer y. liayaxkk 880 

SeigDeoret y. Adinr 478 

SelSen y. Ooaller 440^ 441 

Seton y. SLude 456 

Seynumr y. State. .178^ 181, 188, 188 

ShaokellQid y. State 451 

Shaokelf ovd T. Waid 791 

Shaly.Biaoo 601 

Shannon t. Taylor ••••.•• 811 

Shannon T. White. 196 

Shapard y. BaOleat 700 

Shwgold y. Shanmld 205 

Sharpy. OontnOoeta Go 746 

Shattnok y. Otfion 689 

Shaw y. Beyeridge 424 

Shawy. Ooeter 108,603 

Shaw y. Shaw 488 

Shawy. Weigh 115 

Shawy. Wood 72 

Shearer y. Bangw 457 

Sheannan y. N. Y. Ooni. Milli. . 

680, 636 

Sheets y. Oolyer 671 

Sheete'sWm 115 

Sheldon y. Benham 717 

Sheldon y. life Ins. Oo 545 

Sheldon y. Sabin 680,684, 637 

SheUey'sCase 107,108, 114 

Sbeltony. Berry 827 

Shenk y. Bobeion 148 

dhepurd y. MUwankee G. L. Co. 489 

Shepard y. Philbrick. 156 

Shepherd y. Bnrkhalter . . . .196, 246 

Sherman y. Boehm 633, 636 

Sherman y. Boshnell. 627, 635 

Shieldsy. Jolly 380 

Shindler y. Houston 797 

Shinn y. State. .... 178, 179, 183, 184 

Shiveley y. Jones 578 

Short y. McQrader 346 

Short V. Porter 573, .^74, 580 

Bhamway y. Stillman 216 

Bhate, Doe ex dem. y. Grimes. . . 659 

Siekles y. Msnhattan G. L. Go.. 489 

Sidehoiham y. Barrington 837 

Sidle y.Waten 138 

Sidwell y. Byans. 291 

Sieee y. Malsoh 825 

SUtseU y. Miohael 140 

Simmon's Divoroe Bin, Maftfev of, 722 

Simms y. MoKee. .67, 68 

Simms y. Norris 614 

Simonds y. Heard 610 

Simpson y. Hawkins 839 

Sims y. Anohteiy 684, 536 

Siter and Xnothor, Qwaidians of 

Jordan 91 

Skelheimer y. Ohiyman 581 

Skiff y.Solaoe 68 

Staeky.KIrk 148 

SlaMon y. Beadk 677 

Slater y. Bawsoa 477 

Sloan y. Little 698 

SkMny. People 450 

Smallpieoe y. Booksnhnm 247 

Sma^en y. State 447 

Smedly y. State. . .17*i 180, 181, 190 

Smiley y. DijTOtt 139 

Smith T. Arnold 645 

Smith y. AiUiM 4ML431 

Smith y. Board of Suy f isu r i d 

Barron Oo 473 

Smith y. Booqvst 899 

Smith y.Bosbj 408» 739 

Smithy. Oohsa 777 

Smith y. Ckdyin 668 

Smithy. Dayis 406 

Smith y. JBssiani R. B 429 

Smithy. Ford 478 

Smith y. Godfrey 66 

Smithy. Grim 894 

Smith y. Hntohingi 67 

Smith y. Johnston 155 

Smith y. KesBler 148 

Smith y. Lssher 628^631 

Smithy. Lewis 739 

Smoot y. Mayor of Wotumpkn. . 


Smith y. MoLean 67,68 

Smith y. Mobile eto. Lia. Oo.658, 555 

Smith y.Moore 660 

Smith y. Nashna & K B. B. . . . 254 

Smith y. Nolen 341 

Smith y. People 448 

Smith, People ez reL, y. Psok. . • 758 

Smithy. Perry 572, 676 

Smithy. Poor 516 

Small y. Prootor 477 

Smith y. QaiggMis 849, 350 

Smithy. Ring 593 

Smith y. Seayitts 286 

Smith y. Sherry 478 

Smith y. Smith 438, 677, 724 

Smithy. State 447,452 

Smith y. Stewart 351 

Smith y. Strahan 268,895,809 

Smith y. Strong 616 



taitb. TWelb •.»... 203 

Bmith ▼. Woodruff «3S 

Smith, Inn 946 

Bmithpotar'T. Imb 639 

8ne]gn>T0 T. Snolgraif*. •••••••• 140 

Snyder T. Warrm 666 

Snyder T. White 626^627 

Soiary T. Hewlett 847 

SoUeoT. Croft 216 

SomeeT. Breww 401,492 

Sorber T. WiUiBg 121 

SonthoombT.Blttopof Bnter*. 782 
Sonth, EzMurtebBoir, In !•••• 829 

Sowen T. Petema 814 

SpannT. BeltMQ 264 

Sperke T. Deweon ••• 291 

SpeenT.Ward 666 

Spencer ▼. GetonMA 844 

Spenoe T. Annonr •..•• 679 

Spenoer T. Bnk S14»216 

SpenoerT* GeuHBuyi* ••••••••••• 846 

SpenoeT'eOMO »..,a80, 681 

Spigomel'B Omo 497 

Sprey t. AmmeiiBiA 269 

Spreoker T. Wakeley 478 

SpringT. Sendfoid 677» 678 

Sprowl T. Keller 621 

Steoyy.Foee 791 

Stafford T. liok 641 

Stege'eCSMO 407,499 

S^badkT. Bead 230 

Stambangh T. Yeatea 166 

Stamerr. Naee 187 

Stamper V. Birkar ••••••• 87 

Stanley T. Gaylocd 467 

Studey t. Gzwoimod 848, 849 

Stuiley T. Nelaon 626 

Stenaell T. Boberti 166 

Stanton T. Bntton 786 

Stwylton T. Soott 676 

8twk T. MoQowen 626 

Stater. Aaron 496» 496^ 497» 499 

Stite V. Adame. .. .448, 4601 496, 497 

State ▼. Anthony 191 

StoteT.Amdd 447,497 

StiteT.Babb 448»461,452 

State T. Bamett 190 

State ▼. Barton 496 

State ▼. BenneU 448,460,452 

State ▼. Biriiop 451 

State ▼. Boeti& 499 

State ▼. Brady 447,451 

State ▼. Brewer 178, 190 

StatoT. Broderiok 178, 185 

State ▼. Brown 447,451 

State v.Braoe 450 

Stotev. Buckley... •, 449 

State ▼. Barke 178, 180, 190 

Statev. Butterfield 450 

State T. Garr. .172; 179i 184, 186, 190 

State V. Caaeaday 447 

State T. Com'w of Manefleld. . .. 516 

Stater. Cowan 178, 190 

State T. Cranahaw 261 

Stote T. 

State T. Cortia. •••«•.*• •^•••17^ 188 

Stater. Dday 451 

State T. Dawaea 808 

StatoT. DeaL 183. 189 

State T. DiyeUng 844,845 

State T. Doherty 497 

State T. Emenui 448 

StateT.Bn. 449 

SteteT.Floyd 450 

State T. Vowler 497 

Stater. OUbert 712 

StateT.Goin 497 

Stete T. Golden 447 

Stete T. Gocbam I78» 181, 188 

Stete T. GiETea. 461.462 

SteteT.Graj 447 

State ▼. Gtuid 486, 498, 499 

SteteT. Eandy 498 

StateT.Heaton 448 

Stete T. Heniana 447 

Stete T. Berlin 180 

SteteT. Hill 450 

State T. Hodge • ..448, 449, 461 

State T. Hollywaj 188, 189 

State T.Homee 179,180,280 

SteteT.Honae 262 

State T. Howaid 191 

State T. Howttton 180^ 190^ 191 

State T. Tngraham, 447 

State T. Jenkina 

179, 181, 18^ 188, 18^ 191 

State T. Jennett. 448, 449, 468 

State ▼. Jenniqgi 448,451 

State T.Jonee 178 

Statev. John 188,184 

State T. JohnaoB. 182; 460 

State T.Kegan 181, 190 

State T. KeO^ 448, 460. 461 

State T. Keyea. 676 

State ▼. Lange. 450 

State T. Lawaon 779 

State T. Leamard 498 

State T. Jieighton 181 

State T. MoQarry 629 

State T. Merrick 447, 448, 450 

Stater. Moore 648 

State ▼. Morton 176 

StateT.New 451 

State ▼. North-eaatem B. B. Go. 
714^ 740 

State VyPanp.*.' 414 

StatoT.Pugh 497 

State ▼. Baymond. .447, 448, 450, 451 

State v.RJd 458 

Statev. Keigart 414 

Statev. Reynolda 449, 450 

State V. Richart 447 

Statev. Righte 449 

State V.Sam 498 

Statev. Shaffer 452 

Statev. Sidney 451 

Statev. Snell 448 

Statev. Sowla 188» 188 



MiteT. 8paldiMr^».>««^ 176 

flteto T. Swalfotd 190 

StOaT. l^ylor Sftl,450 

BMeT.ToDcj 498 

State Treunrar ▼. OroM 880 

StKttt T. Trader. 179, 180^ 188; 184, 185 

State T. Vanghan 188 

Slate ▼. Walkflr 449 

State T. Weston 448 

State ▼. WiUiaiiiB 17^,450 

State T. Wilaon 191 

Stater. Wolff 450 

Slate T. Wriffbt 714 

StoadmanT.TIajlor 078| 674 

StebbiaBT. Field 682 

StebbinsT. Walkw 699 

Steele T. BiBDch 740 

StMOTT. State 181 

SteSlej ▼. Lrrine 121 

Steinbaaer T. Whitmaa 888^837 


Stent ▼. OoBiu Nat. Bank 832 

StevcBBy BKjparte 887 

Stevcni T. HoUiogiwarth 851 

ttoTenaoo T. MeSaaiy 640 

Stewart T. €% cf Ne(«rOrieaBi. 


Stewart ▼. Kmmir 116 

Stewart ▼, liaekey 291^874 

Stewart T. Pkeeton •••••• 881 

Stewart ▼. Sovthaid 717 

Stewart T. Stewart 418 

Stinaon T. BiehardaoB ».•.. 846 

St. Jobn T.VaaSaBtfooid 

SLLooiaT. Ganio...* 

Sloektoii*8 Ertate 169 

Stodder T.Powell 689 

Stokea T. State 4I8»461 

Stokea T. Stokea 720 

StoieT. Cbrk 61 

StCBOT. DamaU 401 

Stcne T. Ketlaa d 249 

Stone T. Flryor • ••••••••• ••.... 

Stoney ▼. Sdiolta 

Story T. Manball 

StontT. ICaey 676 

StovaU T. Oarmlobael 814 

StOTer ▼. People « 448 

StowT. Stevens 484 

Striker T. Kelly 768 

Stranff ▼. Waddell 676 

Strowbiidge t. 0.ty of Fortbad. 681 

StoartT. Hawley 662 

Stuart T. McHenry 160 

StoartT. People 462 

Stomp T. Heofy • 640 

StniguiT. Growninahleld 

168.164, 641 

SulliTan ▼. Board of Snpeniaori. 628 

Snmner t. Sterens 477 

Swans, Gaeeof 259 

Swearinger, In re 844, 845 

Sweeney T. Delany. 102 

Swift T. GlffMd 260 

Swift T. KiasBNr 742 

Swinbaxae T. Stookwafl 682; 635 

Sydnor T. Boberta. 816^872, 482 

Symonda t. S np wf law a of Clay 
Goonty..... 511 

Tiber t. Itaar* 
Tanner t. HJall • 



TiarletoB T. Baker 791 

Tkrling T. Bartnr 478 

Tarpley T. Poage 886» 836 

Turant T. Swam 846 

Tarwater T. DaTln 781 

Tate T. Aadersoa 401 

T^ttook T. Harris 224 

T^yloe T. Saadifdrd 677 

Taylor T. Boardmaa 67» 68 

Taylor T.Boalwarsb 8S8» 874 

Taylor T. Oofltft 818 

Taylor T. Ooannoawealih. •«••.• 190 

TayloTT.Doe 701 

Taylor t. Harde 477 

Taylor T, Haigoos 294, 874 

Taylor T. Loiwwiortb 729 

Tkiylmr T. MoODBe 140^ 147 

Taylor T. Mintar 777 

TaylorT.ftiow 814 

Taylor T. State 4fl 

Taylor T. Taylor 116 

TayloTT.Zepp 650 

Teegoe T. Bendy 606 

TeeiT.Taaeey 437 

Temple t. Manaj 6879 336^ 637 

Tenitoty T. BeU 190 

Tflfritovy T. Oaalo 448 

XWIXJ T. JSeRT ••.••■•••••••.•. 0WD 

Terry T. Bofltatgton ..••• 884 

T^rry t. State 180^ 18S; 190 

TenyT. Woods 881 

TarteUiiuL In re 849 

Tbames Sank T. Lorell 164 

Thamea liamifaotariag Oow t. 

Lathrop 707 

Thatoher T. MOlsr 680 

Thayer v. Beaton « •• 607 

TheraasonT. MeSpedon ttB; 635 

Thetf ord. Mayor ete. of t. IVler. 


Tkomae t. DaTidson.67lk 680, 681, 684 

Thomaa T. State 448 

Thomaa T. Williama 295 

ThomaaonT. Odnm 404,689 

Thompson t. Boardman 616 

Thompson t. Brie B. B. Co. . 635, 636 

Thompeon T. Lynoh 631 

Thompeon t. Mawhinaey 863 

Thompeon T. MoOrsal 332 

Thompeon t. Monger. . .673, 674» 688 

Thompson t. Page 878 

Thompeon t. Payne 291 

Thompson t. Thompson 777 

Thomson T. Garpenter 840 

Thorn t. K. Y. Cent. Mills 

634, 635, 637, 68t 


Cases Cited. 

ThorndyksT. GitvofBoilon.... 373 

Thomtoo T. Bojoeo 351 

ThorDtoo T. Kreppa 115 

Thoroughflood v. Bryan 428 

Tliorp ▼. Baghi 555 

Threlkelds ▼. Campbell.' 579 

Thrift T. Fritte ; 580 

Tibbita ▼. Geor^ 329 

Tiernan T. Greditora 350 

Tilghman ▼. Weat 60 

Tilley T. Bridgea 574 

Tiliinghaat T. Champlin 150 

Tillotaon T. Millard 848 

Tinney v. Ashley 727 

Tiadale ▼. Tiadalo 141 

Titna ▼. Morae Cl» 122, 184, 791 

Toddv. Dowd 581 

ToddT. Gordy 348 

ToUey V. Starke 581 

Tomlin V. Hilyard 345 

Tonawanda £. B. Co. t. Hunger 

Toolev. BoDda 841 

Toolejr v. Gridley 890 

Tourville ▼. Rieraon 846 

Towlea V. Tamer 244 

Towne v. Wiley 432 

Townaend t. Gordon 510 

Townaend ▼. PUtt 628 

Townaend v. Tallant 710 

Towuahend ▼. Haghea 248 

Trammell ▼. TrammelL 870 

Trapnall ▼. Jordan 597 

Trapoall ▼. Bichardaon 

401, 599, 601, 603, 700, 702 

Traak V.Green 196 

Traylor t. Marshal 543 

Treadwell ▼. Com'ra 628 

Treadwell v. Salisbury Mfg Co. 516 

Trimble v. Boothby 269 

Trimble V. Turner 492 

Trotter ▼. Harris 526, 539 

Trow y. Vermont Cent B. R. Co. 655 

Troy y. Cheshire R. B. Co 381 

True V. Morrill 349, 350, 352 

Trueman v. Loder 554 

Tniill v. Baatman 96 

Truaoott t. Dole 625, 634 

Trusteea V. HiUs 159 

Trustees of the R. K Bank t. 

Watson 599 

Trustees of Springfield ▼. Demott 51 

Tucker V. Aiken 767 

Tucker v. Carr 399 

Tuckerv.Stote 447 

Tudor V. Taylor 575 

Tufts V. Tufts 599, 602, 700 

Tuolumne Redemption Co. v. 

Sedgwiak 754 

Turbeville y. State 450 

Turner y. Lawrence 599 

Turner v. State 180, 181, 190 

Turney V. Wilson 521 

Tuttle v. Fowler 91 

TwiningT.Kefl 9d\ 

Tyler y. Stmng •• 68 

Tyler y. Tona 585 

Uhlien y. Cromack. • 259 

Ulcry V. Jonea. 261 

Ulmer y. Auatill 589 

Underwood y. Boaaell 296 

Union Canal Co. y. Yoong 140 

Union Lumbering Co. y. Board 

of Superyiaora 629 

United Statea y. Dnrkee .... 188. 189 

United Statea y. Foye 172 

United Sfeateay. Jonea.. 178, 179, 181 

United Statea y. Palmer 179 

United Statea y. Schooner Pegs. . 306 
United Sutea y. Simro8.178, 184, 185 

United Sutea y. Vaughn 789 

United Statea y. Wilaon. .... 178, 179 

Uniyeraity y. Qifton 1 14, 1 15 

Upham y. Hamill 584 

Upton y. Korthbridge 866 

Urmey y. Wooden 880 

Uticalna. Co. y. Lynch 628, 634 

Valle y, Fleming. 540 

Van Bnakirk y. Oty of Newark. 102 

Vance v. Foater 585 

van Dvck y. Van Benren • . .526, 539 

Vandyke y. Harman 666, 667 

Van Epsy. Corp. of Schenectady. 727 

Van Hem y. Taylor 523 

Van Home y. Fonda 139 

Van Benaadaer y. Sheriff ol Al- 
bany 665 

Van Benaaelaer y. Sheriff of Onon- 
daga 665 

VanWinkle V. Stow 754 

VajBsault y. Austin 625, 631, 634 

Vaughan y. Wamell 298 

Vaughn y. Ely 668 

Veasy v. Graham 492 

Veeder y. Fonda 583, 584, 585 

Veramendi y. Hutoldna. 400 

Verdin y. Slocnm 578 

Vernon y. Smith 681 

Vick y. Percy 340 

Vickaburg eto. B. B. y. Flatton. . 

Vidai v. PhiiadelphiLV.V. V.'. ... 879 

Violett V. Powell 610 

Vischery. Yatea 788,790 

Vroom T. Van Home. 370 

Vrooman y. McEaig 505 

Wadey. Wade 850,351 

Wadleigh y. Maratiion Co. Bank 


Wadaworth y. Letaon 216 

Waggoner y. Haatinga 120 

Wagoner y. State 498 

Wait V. Maxwell 492 

Walker y. Commonwealth 452 

Walkerv. Darat 



Walker T. ToDiier 082,633 

Walker ▼. Forbes 540 

Walker ▼. Jeffreys 733 

Walker T. Marahall 372 

Walker ▼. Quigg. 340 

Walker ▼. Badloid 71 

Walker T. State 300 

Walker's Case 497, 460, 452 

WallT.Wall 207 

Wallace ▼. City of Mosoatliie.. . 422 

WaUer ▼. Harris 754 

Waller t. Waller . .430» 440, 441, 442 

Walling T. Miller 791 

Walton ▼. Jordan 159 

Walton ▼. Mintum 697 

Walters ▼. People 294, 348, 352 

Walters ▼. Prestidge 327 

Wankford T. Wankford 646 

Ward V. Commonwealth 188 

Ward ▼. Green 620 

WarJ V. Turner 203 

Wardlaw T. Qray 208 

Warner V. Martin 793 

Waring V. Smyth 661 

Waring T. Waring 681 

Warren ▼. Brown 399 

Warren ▼. State 202,450 

Wanenv. Webb 639 

Washington ▼. Blunt 647 

Washington ▼. MoOanghan 681 

Water ▼. People 447 

WatersT. Travis 467 

WatkinsT. Dean 207 

Watkins V. Oayle 630 

Watkins ▼. Wassdl 001 

Watkins, Ex parte 66 

Watson V. Bailey 786 

Watson V. Gregg 863 

Watson V. Bay 079^680,684 

Watson V. Being 676,681 

Watson V. Spenoa 761 

Watters V. People 87^ 

WatU ▼. Gordon 844| 346 

Way ▼. Kiohardann 330 

WayT.State 447,461 

Wayland T. Tjrsen ttS6» 638 

Weatherby T. Si. Gloqib 213 

Weatherfoid T. Tite 202 

Weaver V. WiUe Ii9» 141 

Webb T. Austin 119 

Webb'sAppeal 91 

Weber T. HanhaU 789 

Webster ▼. Hawortk ..078^ 

Weisiger T. Chiaholm 

Welch ▼. SnOiTan 

Welford ▼. Bessaly 820 

Wsllaod Cbnal Co. ▼. HatiMNriiy. 649 

WellboinT. Weaver 207 

Wellbom T. Wmisms 880 

WeDs T. Whitehead 471 

Walton V. Adams 671 

Wsseman t. Wingnffe 680 

Wesley ▼. State 180, 190 

Wesson ▼. Jndd 630 


West ▼. Dnwhom 478 

West River B^ink v. Gale.. ..851, 362 

Wetraore v. Mcll 655 

Whaley v. Whsley 605 

Wheat V. Owens 341 

Wheaton V. SextOD 778 

Wheeler v. Durant 205 

Wheeler v. San FFandsoo eto. 

R. 11 234 

Wheclrij^ht v. Depeyster 69 

Whelan V. McCreary 141 

Whidden V. Seclye 216 

Whitoomb ▼. Beid 415 

White V. ConinMmwealth....l63,304 

White V. Downs 330 

Whiter. SUto 304 

White V. St. Barbe 88 

White ▼. Todd's VaU^ Water 

Co 778 

W^hite V. Trotter 291 

Whiting T. Beebe 602 

Whiting V. Johnson 313 

Whitlock, Matter of 676, 576 

Whitman v. Conner 67> 68, 70 

Whitney V. PowelL 475 

Whiten V. Mears 237 

Whitwell V. Emory lOJ 

Wiggin V. Bunell 848» 349 

Wigglesworth V. Dallison 653 

Wilooz ▼. State 448 

Wilder v. Haoghey 345 

Wilkins v. Vsshbinder 156 

Willaid T. WiUaid 141 

Willes T. Farley 676 

Willet T. Commonwealth 497 

Williams T. Armory 777 

Williams ▼. Barnes 657 

Williams T. Chapman 754 

WUliams ▼. Commonwealth 452 

Williams T. Dakin 677 

Williams T. Donk 347 

Wmiamsv.Hall 352 

Williams ▼. Judy 748 

Williams T. MeAe 230 

Williams T. Mntoal G«i Oo 487 

Williams T. Tipton 196 

Williams ▼. State. .178, 180^ 187, 498 

Williams T. Vaometer 384 

WiUiamsbuig ▼. Jaekson 61 

Williamson T. Field 751 

Williamson t. Johnston 699 

Williamson T.WIlliamKm 637 

Williamson's Cms 57 

Willis T. Matthews 346 

WillisT.MMse 200 

Will]% liMsae ol, T. Boehsr 114 

Wills T. SpiaggiiiB 504 

Wilson ▼. Allen 627, 631 

Wilson T. Bailer 201 

Wilson T. Canon 08 

Wilson T. Goohnn 848,849,850 

WUson ▼. Commissionsfsof Uwit- 

ington 746 

Wilson T. Hooper 


Cases Cited. 


Wilson ▼• Mayor ste. of NewYork 717 

Wilson v. Oweni GffJ 

Wilson ▼. Smith 318 

Wilson ▼. State 178 

Wilson V. Stripe 605 

Wilson ▼. Tamman 190 

Wilson V. Wilson 724 

Wilson's AcoonnU 210 

Winsns v. Christy 620 

Windham Bank T. Norton 471 

Winfrey v. Work 586 

Winff v. Dogan 629,634. 635 

Winstow v. Leonard 478» 797 

Winston T. Weetfeldt. 269, 754 

Wintringham V. Lifroy. 466 

Winti V. Morrison 544 

Wirgmaa t. Hioks 635 

WiseT.HUton. 790 

Witmerii Appeal 128 

WolhoroogVaOaMtAlioa da.... 497 

Wolf T. Fhschacker 346 

Wolf T. Fogarty 715 

Wolf e T. DoiveU 620 

Wolfe T, Scarborooi^ 75 

Wolfe T. Washbom 421 

WoodT.Chapin 141 

Wood T.Wood 720 

Woodard v. State 179, 184 

Woodooek v. Bennett 602, 737 

WoodmffT. Bnnoe 340 

WoodsT.Mann 645 

WoodsT.MoQee 795 

Woods ▼. Williama. 93 

Woods ▼. Wilson 122 

Woodward v. Blanohard 477 

Woodward ▼. Harbin. . .590, 631, 779 

Woodward T. McBeynolda. 475 

Woolen T. Hillen 742 

Woolf T. Caialker 259 

Woolfolk T. Bioketa 374 

WooUanda T. Growohw. 88 

Worland t. Kimberiin 


Worsham ▼. Hardaway 582 

Worster ▼. Ouial Bridfle 249 

Worthington t. McBoberts 

. ..572, 574, 579, 581, 582, 645, 646 

Worthy ▼. Johnson 230, 647 

Wright T.Dooglass 668 

Wright v. Henderson 290 

Wright ▼. Mattison. 476,477 

Wright V. Morse 148 

Wright ▼. Pearson 114,116 

Wright ▼. Bamsoott 260 

Wright T. Solomon 797 

Wright T.Wiloox. 666 

Wright T.Wr^t 720 

WnsnigT. State 496 

WyattT. Jeffiries 827 

Wyatt ▼. Savage 74 

Wyatt ▼. Steeli 643 

Wyckoff ▼. Gardnsr. 27ft 

Wynn T. Garland 46ft 

Wynne T. Alennder 61 

WynnoT. Wynne 239 

Yalev.Yab 406 

Yarborongh t. Thomson. 189, 606^ 790 

Yarboroogh, Bs parte 287 

YatesT.Foot 790 

Yatesv. State 448 

Yetaer ▼. Thoman. 61 

Yoong v. Adams 

Yonngv. Gatlett 

YoQDg ▼. Dake • 

Young T. Danieb 408^739 

Young ▼. Herdie 122 

Young ▼. MoQnng 676^ 677 

Young ▼. Paol 

Young T. Bnmmell 

YoungT. Smith 

Young T. Wririit 464 

Yoongman t. jJnn 

Zaohaiyy. Fmo S84| 




American Decisions. 







[7 Ohio Bkatb, C5.] 

^WHSHira Advakcixg Monet to Bbuevb Ihdiobkt PBBSOirs mat &■- 
OOTXB the same from the person or municipal authority obligated to 
support such persons only in case of a neglect of such obligation or a 
refusal to support such persons. 

Pavpkss Who Becomb Sbttlbd Remain Chabob on Township whose 
territory affords them a dwelling-place, without regard to the former 
name or boundaries of the township from which they ha^e become 


with all paupers having a residence and legal settlement In the tsrritoiy 
of which it is composed. 

LirjTATio's Place or Sbttlembnt is not Intaudatbd ok Changed by 
confinement in an asylum or jail by lawful authority. 

OataoTOBS Autborizbd to Remove Paufebs to Countt whose commis- 
sioners are obligated to receive them may sue and recover for breach ot 
duty if such paupers are not received. 

Hew CSountt Made by Dtvidino Old One is not Chaboeable with any 
espenae incurred by the old county in keeping a pauper whose proper 
residence is in the new one, until he baa been removed to the new one 
with the request that he be received and taken care of by the commis- 

SzpBNSEs or Retuxnino Paupbbs to C0MMI88IONEBS or New County 
carved from the old one, together with the charges for keeping them from 
that period, is the limit of recovery in case such paupers are not received. 

Debt, by defendants in error against plaintiffs in error. 
Mary Carlisle had a legal settlement in Green township, Rich- 
land county; became insane; was, under proper proceedings, 

sent to the lunatic asylum in 1839; was declared incurable and 
Am. dbo. tol. lxx— 4 49 

50 Ashland Co. v. Richland Co. Infirmary. [Ohio^ 

returned to jail in 1844; and was afterwards maintained at ttie 
expense of the county in the infirmaiy. In 1846, the county 
of A»hland was created, partly out of Richland county, and 
Green township became a part of the new county. In 1847 the 
directors of the infirmary requested the trustees of Green 
township to take said llaiy Carlisle off their hands and support 
ber, and in 1849 they presented a bill for her support to the 
commissioners of Ashland county, and also took the pauper to 
them. They refused to receive her or to pay the claim. The 
jury found a yerdict for the plaintiffs below for four hundred 
and fifty-one dollars and ninely-eight cents. Defendants ap- 
pealed. Other facts are in the opinion. 

B. W. Kellogg and W. Ofbome^ for the plaintiffii in eiror. 

J, M. and M. May, and Stevens, for the defendants in error. 

By Court, Bowiir, J. There was no provision made in the 
act to create the counly of Ashland for the support of paupers 
who might have legal settlements within the territoiy which 
was then organized into a new county; nor is there any general 
statutory regulation on that subject. The questions that are 
presented in this case must therefore be determined upon the 
same principles of equity which have been applied heretofore to 
actions brought against townships to recover compensation for 
taking care of and supporting paupers who had settlementa 
within them. Reported decisions of our own state, made in 
reference to the liability of such townships, afford us almost the 
only light we have on the subject, and leave us at liberty to adopt 
for present purposes the equitable rules which have governed our 
predecessors in this class of cases. 

The act for the relief of the poor requires township authori- 
ties to afford relief to such persons found therein as may be in a 
suffering condition, whether they are legally settled there or not; 
and when a person becomes chargeable in a township other than 
the place of his or her legal settlement, an action may be brought 
against the trustees of the township where the pauper has a set- 
tlement, and the reasonable charges and expenses incurred for 
the support thus furnished recovered back: Sec. 9 of said act 
The statute authorizes no other form of action for the recovexy 
of such charges, nor does it confer any right of action against 
individuals in favor of townships that provide support for in- 
digent persons. But it was held, in Howard v. Wheteone Town- 
ship, 10 Ohio, 865, that a township which furnishes neoessariea 
to the wife of one able to maintain her may recover the amount^ 

Dec 1857.] Ashland Oo. v. Richland Ck>. Infibmabt. 51 

in an action of anumpmi, from the hasband, in case he has 
dirren her from his hoose by omeltj. So when relief is fur- 
nished to the wife of one able to support her» bat who has aban- 
doned her without cause, assumptU may be maintained by the 
township against the husband to recover for the amount fnr- 
nidied: Trustees of Springfield t. DemoU, 18 Id. 104. 

These cases proceed on the principle that the sufferings of 
paupers and of indigent persons shall be relieved by the town- 
ships where they may be found in their destitute conditions, and 
that advancements made for such purposes are justly charge- 
able in equity and conscience to the person or municipal au- 
thority whose relation towards the pauper or indigent person 
creates a duty or imposes the necessify of furnishing aid, and 
that the obligation, when neglected or disregarded by those who 
should perform it, may be enforced in favor of wbomsover 
grants the relief, as for money paid out and expended for an- 
other's benefit. In the division of townships, it has been held 
that paupers pass with the territory on which they reside at the 
time the division or change takes place; and that if they have 
l^gal settlements within the limits of the territory divided, they 
retain them in the township where they actually reside at the time 
the change takes effect: Center v. Wills, 7 Ohio, 2d pt., 174; 
Wmiamsburg v. Jackson, 11 Ohio, 37. By this rule all paupers 
who become settled remain a charge upon the township whose 
territory affords them a dwelling-place, without regard to the 
former name or boundaries of the township from which they 
have been separated. 

In the case now before us, the pauper was settled in Green 
township, Bichland couniy; and while thus settled was removed 
to the lunatic asylum, and her disease being ascertained to be 
incurable, she was taken to the jail at Bichland, and became a 
couniy charge. 

The tweniy-eighth section of the act in regard to lunatics and 
lunatic asylums. Swan's Stats. 1841, 578, provides that *' if any 
lunatic or insane person shall be admitted into the asylum, and it 
shall be ascertained by the superintendent, after the expiration of 
sufficient time, under proper treatment, that the malady of such 
lunatic or insane person is incurable, the superintendent shall 
make such case known to some one of the directors, and such 
director shall, in case such lunatic or insane person be a pauper, 
issue his warrant for the discharge and removal of such pauper to 
the proper county; and that he or she be delivered to the jailer 
thereof, who is required to receive and provide for such person.** 

52 Ashland C!o. v. Richland Co. Infibmabt. [Ohio, 

The duty of supporting her was thereby transferred from 
Green township to the county of which it formed an integtal 
part, and after thus becoming released from the direct burden 
which it had formerly been compelled to bear, the county of 
Ashland was formed by an act of the assembly, and Green town- 
ship was separated from its old county relations, and placed into 
and made to form a part of the new county. It is claimed that 
this change of the county lines, and the transferring of Green 
into a new couniy, cast, as a necessary incident, upon Ashland 
the burden of maintaining this pauper. But to this it is re- 
plied, on the other hand, that the liability of Richland county 
haying become fixed, by operation of law, to take care of the 
lunatic. Green township was thereby exonerated, and took her 
place in the new county, unincumbered and free of this charge. 
This may seem plausible until we recur to the fact that no 
change of setUement of the pauper has occurred. Her absence 
from the township while in the asylum, and her confinement in 
the jail of Richland, and her maintenance by contract in other 
townships, resulted from legal proceedings had against her, and 
do not in any respect invalidate or change her place of settle- 
ment. The county of Richland can deriye no further reyenue 
from Green township. The right to tax its property, and to 
impose duties upon its inhabitants, has Tested in another mu- 
nicipal body. To us it seems inequitable that the place of legal 
settlement, from which first originated the counly's liability to 
maintain the pauper, shall be set over to another jurisdiction, 
and its civil, political, and social relations with its old asso* 
ciated townships severed, and not carry along with it into the 
new department an incumbrance which can never rest anywhere 
else without some special enactment. It is deemed to be in ac- 
cordance with the spirit of past decisions, before referred to» 
that a new couniy, when formed, shall receive and become 
chargeable with all paupers having legal settlements in the ter- 
ritory of which it is composed. Mary Carlisle was an incurable 
lunatic pauper of Green township, by means whereof the county 
of Richland became, by the provisions of the statute, bound to 
provide for her wants. From the perfonnance of this duty it 
had no power rightfully to refrain, while its relation towards 
the township continued. But when the legislature saw proper 
to establish a new county, and to give to it this incumbered por- 
tion of Richland, it imposed, as we think, upon the new county 
the duty of removing the incumbrance and charge from Rich- 
land, and of taking upon itself the burden. 

Dec. 1857.] Ashland Co. v. Richland Co. Infibmabt. 53 

The eighth section of the act authorizmg the establiflhment of 
poor-hoaseSy Swan's B. S. 614, provides that in any counly 
within which a county poor-hoase is or nuiy be erected, it shall 
be the duty of the directors to give an order to the auditor of 
the county for the payment of such necessaxy expense as may 
have been incurred by any township in removing any pauper to 
the poor-house, or that may have been incurred immediately 
preceding such removal by reason of delay caused by the sick- 
ness of such pauper; and the auditor shall draw his order on 
the county treasurer for such amount. 

The directors of the county infirmary of Richland were au- 
thorized to remove Maiy Carlisle to the proper place of her 
residence, which, as we have already shown, was in Ashland 
county, and to demand and receive the charges for her removal, 
as well as for her support furnished by them. It was the duty 
of the commissioners of Ashland county, when the pauper was 
offered to them, to accept and to take care of her. Their refusal 
was a breach of duty for which they could be sued, and a re- 
covery had. This action was therefore properly brought in the 
name of theplaintifb below: R. 3. Ohio, 1854, 616, sec. 10. 

Aquestionhasbeen raised by plaintiffs in error as to the amount 
which is properly recoverable in this case. The release of the 
couniy of Richland from the charge of supporting the pauper 
could be made complete at any time aiter the organization of 
Ashland; but to accomplish that object, something was neces- 
sary to be done. The commissioners of the latter county ought 
to have been notified of their liability, and requested to take the 
pauper, and provide for her. Anything done by the directors 
of the infirmary previous to such notice and request, in sup- 
porting the lunatic, cannot be regarded in the nature of tem- 
porary aid. She had been committed to their custody, and was 
to be maintained without any expectation of having recourse 
upon any other body for remuneration. It was only by an act 
of the legislature, which took effect while the pauper was get- 
ting her support, as of right, in the infirmaiy, that Richland 
county became entitled to free itself from this burden. The 
directors might hasten or delay the period of her removal to the 
new couniy. But we are of opinion that no reoovezy can be 
had by the plaintiffs below for any charges incurred before the 
return of the pauper to the proper place of her reddenoe, and a 
request thai she be reoeived and taken care of by the commis- 
The pioof shows that the proper notice and offer of thepanpei 

54 Ashland Co. t;. Richi^and Ga Infqjiart. [Ohic\ 

to fhe commissioners were mode on the fifteenth of December, 
1849. The expense of going to Ashland county, at that time, and 
a just remuneration for keeping the pauper since, are proper to 
be recoTered, and a verdict and judgment ought to have been 
rendered for them. The court, however, directed the jury that 
they might render a verdict for compensation from the time the 
pauper was admitted into the infirmary to the commencement 
of the suit. This, we think, was erroneous. The recovery, in 
this instance, must be limited to the expenses of returning the 
pauper to the county commissioners, and to the chaige of keep- 
ing her from that period, as there was a refusal by the latter to 
receive her. We cannot correct the verdict without the consent 
of parties, and mu^t therefore reverse the judgment for this 
erroneous instruction to the jury, and remand the cause for fur- 
ther proceedings. 

Babtlbt, 0. J., and Swah and Scott, JJ., concurred. 

Bbihxebhoiv, J., having formerly been of counsel in the case, 
did not sit. 

DoMXcnjB OB Brsidkncb of Luhatic 18 NOT Changbd oven by hii removal 
to an asylum in another state: Clark v. W&Uaher, 46 Am. Dec. 337. 

Citations or Principal Case. — The general theory upon which legia- 
lation for the relief of the poor was framed was that each township should 
bear the bordon of SQstaining the poor having a legal settlement therein. 
And the same idea forms the basis of all provisions for easting the burden of 
support on counties, as in case of incurable lunatic returned from theMjlum: 
Directon qf Infirmary qf Marion Co, v, Tnuteu qf Wes^fidd Toumthip, Mor^ 
row Co., 21 Ohio St. 376, citing the principal oase. Section 8 of the '* act for 
the relief of the poor," passed March 14, 1853, Swan & Critchfield, 925, allows 
an action to be brought by one township against another, in the county in 
which either of the townships may be situated. Section 10 of the "act to 
authoriae the establishment of poor-houses," Swan & Critchfield, 927, requirea 
the directors of county infirmaries to provide for paupers having a resideuoe 
without the limits of their county, and confers upon them all the power and 
authority theretofore vested in overseers of the poor or township trustees. 
And in Directors qf Muakingum Co. Ir^rmaery v. Ci/y of Toledo^ 16 Ohio SL 
410, it was held that such directors could maintain an action against a city of 
the second class in another county, where the boundaries of such city are 
identical with those of a township, and such township has thereby become 
merged in the city, for, etc., incurred in furnishing temporary relief to and 
removing an insane pauper having a legal settlement in such dty. The prin- 
cipal case was then cited to the point that the directors wero thereby aa 
fully authorized to maintain such an action as township trustees were, under 
the existing laws. In counties where there was an infirmary, the general 
provision of the statute is, " that no person shall be admitted to any such in- 
firmary as a pauper, unless upon the order or warrant of the trustees of the 
proper township, directed to the board of directors of the infirmary ol the 
proper county," showing the legal settlement of the pauper in the township^ 

Dec. 1857.] Ex paste Shaw. 65 

<»r other proper grooBd for his bemg a etstatofy ohatge in the towaahlpi 
Svea ft Critehfield, 928, 830^ 933. Nor in ncfa €Me it the tetUeoient of the 
peeper in hie proper township lofft, hot oootinaee es before: Dktet 9 r § qf 
h^umuTf qf Mariom Co. t. TnuUea ^ We^/Sdd T owtuMp^ Marram CSpl, 81 
Ohio 8t^ 377, etting the prineipel 

Ex PABTB Shaw. 

(7 Omao SxAZi^ 8L) 

Wnr Qv H^wiAii OoaroB CAHBOf bi Usbd to Bsraw Ebbou Ajn» 

uiiABTTxaB in proeeediagiresalting in conviction end sentence. Awritef 

emr is the proper remed j. 
Sbhtbhcb Void tob Wamt of JmosDioixov ovbb Offmrai mat bb As- 

8AII.BD ov w^AMKA* Oobfub, and the relaAor discherged. 
' Habbas Gobtus oAinroT bb Usbd to Attack Jvdoiibvt ov Ooobv posMs^ 

ing geaeiml Jnriedictioo in criminel oeees. 


Bbbob, nod not b j kabaaa eorpma. 
Sbbtbncb vom Shobtbb Tbbm thab Fbbiod Riquibbd bt Law is Bbbo- 

xxoua» not Toidv end cannot be attacked on hahaaa eorpma, 
&BSUB1I ov HiBaAs CoBvim IBTO SoraBm Coitbt nr Tbbm Tdcb Bsm 

nr DiacBsnoH of the Judge wlio allowed the same; and the rsgnlar bnsi- 

nees of that coort will not be pat aside to liear each retnras wliere the 

Jndicisl aysteni will pennit them to be lieard in <»tlier coorts with less 

delay end inconTenience^ 
To UsB Habbas (kmrxm as Writ ov Bbbob nr Avbvujbo Sbbtbbobs n 

Abubb which cannot be too eoon corrected. 

Habkab oobfub. The relator had been indieted for horse* 
etealmg, and was sentenced to hard labor for the period of 
one year. The question presented in the case is given in the 

J, A. OoruHn^ tat the relator, Shaw. 

By Oonrt, Swab, J. The qnestion presented in ibis case is 
whether, conceding that the sentence is for horse-stealing, and 
that by statate the sentence mast be for a period not less than 
three years, the commitment is lawful. 

The courts are requited by statute, upon convietion, to sen* 
tence for a period not less than three years. The sentence in 
this case is for one year. Does this render the sentence void, 
and the commitment of the relator unlawful? The question is 
one simply of jurisdiction. 

The court had jurisdiction over the offianse and its punish- 
ment. It had authority to pronounce sentence; and while in 
the legitimate exercise of its power, committed a manifest errof 

56 Ex PARTE Shaw. [Ohio, 

and mistake in the award of the number of years of the punish- 
ment. The sentenoe was not void, but erroneous. 

The writ of error and habea9 corpus have each their separate 
offices. There are ample remedies provided for the correction 
of irregularities and errors in proceedings which result in con- 
viction and in sentences by writ of error. For errors and irregu- 
larities in such cases, the summary remedy by habeas corpus can- 
not be had: Ex parte KeUogg, G Yt. 509; MaUer of Prime, 1 
Barb. 840. But if the court has sentenced the relator for an 
offense over which, by law, it had no jurisdiction whatever, so 
that the proceedings and sentence were manifestly coram non 
judwe and void, the imprisonment following such void sentenoe 
would have been unlawful, and the relator entitled to be dis- 
charged on habeas corpus: Cropper v. ComfnonweaUh, 2 Bob. 
(Ya.) 842; Ex parte Watbins, 8 Pet. 202. 

The statute excepts from those who are entitled to the benefit 
of this writ persons convicted of some crime or offense for which 
they stand committed, plainly and specially expressed in the 
warrant of commitment. The exception of persons convicted 
applies particularly to the application now under consideration. 
The relator is detained by virtue of the judgment of a court pos- 
sessing general jurisdiction in criminal cases. This judgment 
cannot be re-ezamined on habeas corpus. 

Questions of doubtful jurisdiction are frequently involved in 
a record, which are proper subjects of consideration upon a writ 
of error; and which should not therefore be entertained or de> 
cided upon habeas corpus. 

The return of a writ of habeas corpus into this court, in term, 
rests in the discretion of the judge of this court who allows the 
8ame; and as parties may, in general, have relief by application 
to probate and common-pleas judges with less delay and incon- 
venience, we do not deem it proper, unless under veiy peculiar 
circumstances, to put aside the regular business of this court by 
making applications of this kind returnable in term. 

It is said to be the practice in some parts of this state to use 
the writ of habeas corpus as a short and summaxy mode of re- 
viewing, as upon a writ of error, and annulling the sentences of 
courts. If this be so, it is an abuse of the writ of habeas corpus 
which cannot be too soon corrected. 

The prisoner is remanded to the custody of the warden. 

Babzlst, 0. J., and Soott, B k i wkkkho it, and Bowxn, JJ., con* 

Dec. 1857.] McAfferty v. Conoveb's Lessee. 57 


Law: See Freenutn on Jadgmeoti, aee. 025, citing the principel caae and 
commentiiig npon it; Church on HftheM Corpna, tec. 372, citing the principal 
case. On other points contained in the syUabns, eee extended note to CoM- 
monwealih ▼. Led^^ 26 Am. Dec 40-49, ehowing how Ur a ooarfe ean go be- 
hind jadgment or proceei on habea$ eorpma: WUUammm^t Cote, 67 Id. 374, 
and oopioos note thereto 38S. 

Thb PRUfGiPAL CASK WAS ciTXD in Sx parte Bmhmett^ 9 Oliio St. 183, to 
the point that if a oonrt, having Jnrisdiction over an ofienae pnnishable by 
a valid and oooatitational law, prononnoea Bentenoe, and the oonunitment 
nnder that aentenoe ia retained on habeas corpus^ the form of the indictment, 
or the want of proper allegationa therein, oannot be inquired into; for thia 
process cannot be converted into a writ of error. In such case, tiie court* 
having jnriadiction orer the offense, must itself pronounce the law of the caes^ 
snd until rerersed by some oompetent tribunal, ii condnsiTe on all otlMr 
courts, and puta an end to all collateral inquiry on habeas eorpae. 

MoAffebtt t;. Gonoyeb's Lessbb. 

fr Oaxo 01IA9B, M.] 

Paboi. BviDxvon n always AnmsBisfji to Dsmuaini wiu t hj> Mow- 
XSRTS found on land are identical with thoee mentioned in the deed 
dcaeribing it. 

IsTxanosr of Pabxzbb oahitot Taks Pz^aob of Gall iir Dxsd which Is 
unambiguous, although the call was in fact not intended by the partiea. 


or BxiD, only where the words of description they employ will admit 
of it» and are not inconsistent with the intention proved; further than 
thia a court of law cannot go. 
Aozs CoHSXiTUTuia Estoppel ix Pais kobt bb Willful to operate as a 
fcnfeiture of land. 


it to be the true one, will not operate as an es t oppel upon the parties 
where the true line is in &ct unquestionable. 

SSracTKBiiT. Thomas J. Oonoyer owned the Chambers traot 
of land, situated on the north side of the conniy road. Mb- 
Afferty and Stunpflons owned the tract adjoining on the south 
ade of the road, and one Smith owned the tract of Lmd adjoin- 
ing the Chambers tmct on the east. Conorer and Smith hired 
a Borreyor to snrrey the Chambers traot. There was no doubt 
about its true lines, for the monuments still existed. The sur-' 
yejor left out a strip of the Cliambers tract four rods wide, lying 
along the county road, and containing two acres. According to 
the line thus made, four rods back from the road moDuments 
were placed and the fences changed to this new and erroneous 
line. Oonover then tried to purchase this strip between the 

S8 McAfferty V, Conover's Lesser [Ohio, 

new line and the road from McAfferty, who at first dischiimed 
ownership of it, bat finally sold it to Conover. The deed de- 
scribed the strip as follows: " Beginning at the south-east cor- 
ner of the Chambers tract, now owned by said Thomas J. Gono- 
ver; thence west eighty rods; thence south four rods; thence 
east eighty rods; thence north four rods to the place of begin- 
ning, containing two acres of land, strict measure." Afterwards 
Conover found that his land really extended to the road in the 
first place; that the strip of land was already his own when he 
paid for it. Conover asked McAfferty to refund the money paid 
him, but the latter refused. Conover then brought ejectment 
for a strip containing two acres on the south side of the road, 
claiming under the deed from McAfforty. Defendants obtained 
a verdict in the common pleas; but on appeal to the district 
court a verdict was rendered for Conover. On the trial, the 
defendants offered to prove the facts narrated, and to show that 
the land intended to be conveyed v^as located on the north side of 
the road. It was admitted that by the true lines of the Chambers 
tract it extended to the county road. The court ruled out the 

Thomaa MUUkin, for the plaintiffs in error. 

John R. Lewis, and ScoU and McFarland^ for the defendant in 

By Court, Swan, J. No doubt the rights of these parties 
could be readily adjusted, and upon just principles, in a court 
of equity. Our inquiry now is. What are their rights at law ? 

1. Can McAfferty and Stimpsons be permitted to show that, 
by the call in their deed of " the south-east comer of the Cham- 
bers tract," they and Conover meant and intended the comer 
made by the then recent survey ? 

Nothing is more common, upon the trial of cases to setUe 
conflicting boundaries, than the admission of parol evidence of 
third persons, and proof of the declarations of the parties in in- 
terest, in relation to comers. In the application of the descrip- 
tion of land in a deed to the land itself, the fact whether the 
monuments found thereon are identical with those mentioned 
in the deed is always the subject of parol evidence. And when 
the calls of the deed and the objects found on the land render 
it uncertain which of the objects found were called for, parol 
evidence, the admissions of the parties, or other extraneous cir- 
cumstances may be proved to show which of the objects were 
in fact called for by the deed. In such case, there is a latent 

Dec. 1857.] McAfferty v. Conover's Lessee. 59 

mmbiguity arising in pais, and to be settled bj proof in pau. 
Nor does sach proof contradict the description in the deed. It 
simply aids in its interpretation, and gives application to its 
description of the land. But where there ia a call in a deed 
k which was in fact not intended by the parties, and is found, and 
is unambiguous, the intention of the parties cannot be made to 
take the place of the call; for if this could be done, titles aod 
lands would be transferred by the intention of parties and not 
by deed. Effect will be given to the intention of the parties in 
respect to calls only where the words of description they employ 
will admit of it, and are not inconsistent with the intention 
proved; further than this a court of law cannot go; beyond this 
aa the region of equitable jurisdiction, under the head of mis- 

In this case, it was admitted as a matter of fact, on the trial 
and by the bill of exceptions, that " the south-east comer of the 
Chambers tract" is on the county road; the controlling comer 
of the land described and conveyed by the deeds of McAfliBrty 
and Stimpeons to Conover; and the only locative call in the 
deeds. This admission precludes any doubt as to where the 
south-east comer of the Chambers tract is; sets at rest any ques- 
tion of latent ambigniiy ; so that, if the proof of the intention of 
the parties to the deeds is received and acted upon, it would con- 
tradict this call, and transfer all the calls of the deed from the 
south side of the couniy road into the Chambers tract. Such a 
transition of a tract of land cannot be made by proof of inten- 
tion, in oontnavention of the calls of a deed. It is very clear 
that Conover made a mistake when he purchased from McAfferty 
and Btimpsons his own lands; and that McAfferty and Stimpsons 
auide a mistake in conveying to Conover their own lands south 
of the county road. 

2. It is claimed that Conover made a new south-east comer 
for the Chambers tract, represented the same to be the trae 
•comer, and induced the plaintiffs in error to act on that repre- 
sentation; and hence Conover is estopped by his own acts and 
admissions from denying that the new comers are the trae 
<!omers. As a genexal rule, a party will be concluded from 
denying his own acts or admissions, which were expressly de- 
signed to influence the conduct of another, and did so influence 
tt, and when such denial will operate to the injury of the latter. 

Estoppels by deed or by matter of record sometimes conclude 
the party without any reference to the moral qualities of his 
<ionduct. But estoppels in paU are not allowed to operate ex- 

dO McAffebtt V, Conover's Lessee. [Ohioi, 

oept where, in good conscience and honest dealing, the party^ 
ought not to be permitted to gainsay his admission: Common-- 
wedUh T. MoliB, 10 Pa. St. 631 [51 Am. Dec. 499]. And^ in. 
general, the act or dedaration of the party must be willful, 
that is, with knowledge of the facts upon which any right he^ 
may haTC must depend, or with an intention to deceive the other 
party: Copdand r. Copeland, 28 Me. 625; TUghman v. West. 8< 
Ired. Eq. 183. This kind of estoppel was first established by^ 
courts of equiiy, and has since been extended to courts of law. 

It is founded on fraud. There are implied warranties and 
implied guaranties which are enforced, not as estoppels in paiSy 
but as contracts, and in which the question of fraud or fair deal- 
ing may or may not be involved. Whether it be a rule without 
exception that an estoppel in pais must always be accompanied 
with the willful act or declaration of the party upon whom it is 
to operate, we do not decide; but we do hold that such act or 
declaration should be willful to operate as a forfeiture of lands. 

Thus where the true lines are in fact unquestionable, and 
parties by mistake agree upon an erroneous line as their boun- 
dary, and suppose the line agreed upon to be their true line, and 
fence to it, their acts and declarations do not operate in the- 
nature of an estoppel. A party will not forfeit his estate by a^ 
mere mistake; nor can the statute of frauds be thus evaded. 
Something more is required to transfer the title. If there has- 
been acquiescence, adverse possession, and improvements made- 
lu accordance with such erroneous line, under such circum- 
stances as that the owner is chargeable with gross negligence- 
amounting to fraud, an estoppel in pais may probably perma- 
nently establish the erroneous line. 

There is another class of cases where the line between owners- 
of land cannot with certainty be ascertained; and because un- 
certain, they agree upon and establish the line. Such agreement 
settles the line; not by estoppel, but by agreement. 

In the case before us, the comers of the Ohambers tract were- 
in fact indisputable. The parties acted under an honest mis- 
take, without fraud or intentional deception. Declarations thus- 
made do not operate in the nature of an estoppel to forfeit the- 
tide to land. 

It is proper to remark that the deeds made by McAfferty and 
Stimpeons describe and convey on their face a slarip of land, and 
the proofs of the acts and parol declarations of Oouover would,, 
if an estoppel in pais, convey another and different strip of land. 
A title to an entire tract of land dependent upon the estab- 

Dea 1857.] McAffertt v. Conoveb's Lessee. 61 

iishment bj parol proof of the acts and parol declarations of a 
third person is not quite as ceriain and convenient a title as the 
law has in general so wisely provided for by deed and record. 
And ihis at least shows that the doctrine of estoppel in pai»^ 
however safe in courts of equiiy» should be carefully and cau« 
tiously applied to titles at law. 

On the whole, we are of the opinion that in this case one tiact 
of land was conveyed by mistake instead of another; and the 
mistake cannot be corrected at law by proof of the intention of 
the parties; and that, under the circumstances of this case, and 
their relations growing out of mutual mistakes as to the pur- 
chase and the deed, justice and good faith does not require the 
application of the law of estoppel in pais to the conduct and 
declarations of Oonover. 

Judgment of the district court afiSrmed. 

Babxlxt, O. J., and BanixxBHorr and Boweh, JJ«, concurred. 
800TT, J., having formerly been counsel, did not sit. 

Parol EvmsHOE is Adxissiblb to Show that Cobnxb Cobbbspondi 
with the call of the entiy or snnrey; McChff r. QaUoway^ 17 Am. Deo. 591, 
593, bat where the land is described by couraes and distanofis only, parol 
evidence to prove that the true bonndary is a line of marked tzees not men- 
tioned in the deed, and varying from the written calls of conrse and distance, 
is inadmissible: IFyiwis v. Alexomdert 47 Id. S28. Identical monument re- 
ferred to in deed may always be shown by parol: Omery v. IFeftflter, 66 Id. 

Lnrs Named in Dbsd will Pbbvail over one marked by the parties at 
the time of its ezeontion: Wymne ▼. Alexoaider^ 4tl Am. Dec 326. The rulei 
governing where description of land is inconsistent or nnoertain will be found 
discnssed at length in the note to ITealon v. Hodge», 30 Id. 734-742. CerUin, 
definite, and dear desoription in deed cannot be oontrolled by intention of the 
parties: See note to Stone v. Clark, 86 Id. 373. 

Brraor or Mistakx as to Tbux Linb: Carrowaff v. Chaneey, 64 Am. Dec 
SHf and notes 679; Brewer v. BoeUm eie. R. B. Co.^ 39 Id. 694, and notes 
607; BUey v. €hn^n, 60 Id. 726; note to OrowtU v. Maughs, 43 Id. 64. 

Irtehtion or Pabtibs to Debd will Govbbn whbn: Stone v. Clark, 36 
Am. Dec 370; Budd v. Brooke, 43 Id. 321; Emery v. Webster, 66 Id. 274. 

Bbbonbous ADMiasiosr as to Boundabt Linb, Madb in Good FArrn and 
BT MiSTAKB, 18 No EsTOPPBL; Brewer v. Boston etc, B, B. Co,, 39 Am. Deo. 
694; Jackmm v. Woodrvff, 13 Id. 626; OAorne v. Endieott, 66 Id. 498. Doc- 
trine of estoppel til pais is discussed in TUue v. Morse, 63 Id. 666. 

Thb PBiNdPAL CABB coutaius the settled doctrine that where adjoining 
proprietors, under a mutual mistake as to the locality of the two lines be- 
tween them, respectively occupy up to and acquiesce in a line other than the 
true one for a period less than twenty-one years, neither party is, in general, 
estopped to assert title up to the true line. This is a question of estoppel in 
fsne, and was distiiignished as such in YHter v. Thoman, 17 Ohio St. 133, 

Eanaga 0. Tatlob. [Ohio,. 

from one invdlTiiig the applicfttion of the statate of limitatioiia, which wa» 
the natare of the Utter caoe. It was conceded in one of the defenaee to 
Bcbo ▼. Richmond^ 25 Id. 121, that the line agreed upon was not the true 
line, and that the true line was a certain fixed line known to the parties, 
abont the location of which there coald be no dispute, though it was ne^er 
actually run and estabUshed. This case was distinguished from the prindpal 
one. In the principal case the true lines and comers were fixed and certain, 
and the lines and comers sought to be established were maile by mistske, 
and not by sgrsement of adjoining land-owners, and hence the court in de- 
ciding that case said ''that the acts of the parties in making such mistake, 
and the declarations or admissions induced by such mistake, and the fencing 
of both parties iu accordance with such4nistake, do not operate, in the nature 
of an estoppel m jxiis, to forfeit the estate." The esse of Nye ▼. Deanp^ IS 
Id. 254, was considered to be within the role of the principal one, and the 
latter was there cited to the effect that to work an estoppel in pais, and 
forfeit title, the acts and declarations of the owner must, in general, be will- 
ful; that is, with knowledge of his rights, or with intention to deceive ih# 
other party. 

EjkKAGA V. Tatlob. 

[7 Ohio Staxb, 134.] 

SniOBOEMBNT Of Ghattsl Moktoaob IN Foaxxoiff JcBUDioKiov.— Chattel 
mortgagee holding valid and legal chattel mortgage by the state law in 
force where he obtained it may enforce it in the courts of Ohio, even 
against a purchaser without notice of the mortgage, where the property, 
beforo breach of condition, has been removed to Ohio, and beyond the 
jurisdiction of the state in which the mortgage was given. 

Objbot of Rkqistbt Laws in Rxquibino Cbattxl Mobsoaou to bb 
Recobdkd at the place of the transaction, or where the mori^pigor may 
reside, is to convey notice to others who may wish to become interested 
as purchasers or lien-holders in the same property. 


Othxb Szatbs, is not Rbquibxd where a legal registration at the time, 
and in the place and manner pointed out by the law of the plaoe of the 
transaction or residence of the mortgagor, has given validity to the con- 
tract; because when that act is done, the whole duty in regard to the 
contract is at an end, although the property be removed, before condi- 
tion broken, into a foreign jurisdiction. 

Lbx Lod Contbactus Contbolr as to Consxbuokion and Vauditt or 
Pbbsonal Contbaceb. 

Lbx Fobi Qovxbns Pbocbdubb and Evidenob in actions on personal coo- 

Oontbact Mapb in One State, and to be Pebfobmbd in Another, will, 
if it be valid under law where it was made, and not in contravention of 
the lattei^s laws, be presumed to have been entered into with reference 
to the laws of the latter, and those laws will be resorted to in ascertain- 
ing the validity, obligation, and effect of the contract. 

No Rule of Comitt ob International Law Requibbs Coubts of On* 
State to Enfobce the law of another, where the law of the latter Htate 

Deo. 1857.1 Eakaqa v. Tatlob. 68 

dadM8 wtUi UMrlg^ti of eitbeu of the fomwr, or witb tho pottef of its 

CoBTBAor Void uhdxb Law whuui It is Made n Vom Evxrtwuxul 
Hsw York Iiaw of Chattxl IIobtgaobs is nr Habmont with Law of 
Ohio upon the aabjeot» and effeot will be given to it in the latter state. 

Monov for a new trial. Plaintiff claimed the amount due on 
A chattel mortga^ made to aecuie unpaid payments on a cer- 
tain piano. Driendant claimed to haTe pnichaaed the piano on 
or about September 17, 1853, of one Heniy Moore, an auction- 
eer, in Olereland, Ohio; and asserted title and right of posses- 
sion in himself. Verdict for plaintiff. It appeared from the bill 
of exceptions that on June 17, 1853, the plaintiff, at BuffisJo, New 
York, sold the piano to one William Gregory of that place, on 
the installment plan. The first payment was made, and a mort- 
gage executed on the piano by Gregory to secure the balance. 
The piano was delivered to Ciregory, and taken by him to his 
lesidence in BufUo, with the understanding that it was to re- 
main with his family for priyate use. Within two weeks after 
the execution of the mortgage Gregory removed the piano to 
Cleveland, Ohio, where he, on July 12, 1853, pledged it to 
Moore, and received a sum of money upon it. This transaction 
was accompanied by a privilege to sell if the money was not re- 
funded within sixty days. Gregory subsequently got another 
advance on the piano, and entered into a written agreement to 
warrant and defend Moore in possession of the same until the 
money was repaid. Gregory informed Moore that there was no 
lien or claim against the property. The piano was sold to de- 
fendant on September 17, 1853. Moore had no notice of any 
lien or claim against the property until late in the fall of the 
same year, when he was notified of the mortgage, and the piano 
demanded. The mortgage was not recorded in Ohio. Moore 
and defendant were dtiaens of that state. Other facts appear 
in the opinion. 

Bishop, BadtuB, and NcUe, for the defendant, in support of 
the motion. 

WUley and Oary, for the plaintiff. 

By Court, Bown, J. The motion for a new trial, in this case, 
is urged by the counsel for defendant on the ground, mainly, 
that the plaintiff's lien, by virtue of his mortgage, was lost by 
the mortgagor's bringing the property into this state and dispos- 
ing of it here to a purchaser having no knowledge of the mort^ 


64 Kanaga v. Taylor. [Ohi 

It is admitted that the instrament under which the pLiintifr 
claims to recover was valid in New York. It was not onlj exe- 
cuted as the law there requires it should be, but i( was registered 
in accordance with the statute, in the town where both parties 
resided, and the possession and use of the chattel by the mort- 
gagor were there fully sanctioned by law. Before any breach in 
the payment of the money had occurred, the property was re- 
moved into this state, and became subject to our laws. This 
removal was without the plaintiff's permission; and if the trans- 
action be closely scanned, it was, as to the mortgagor, an act not 
characterized by too strict regard to integrity or the rights and 
expectations of the mortgagee. Almost as soon as he arrived in 
Cleveland he began to manifest an intention to defeat the plain- 
tiff's security. He at first assumed to pledge it to Moore as 
the property of another, and not his own. He apprised Moore, 
however, that he had just come from Buffalo. After getting as 
much for the piano as he could, by the devices which he adopted, 
he allowed it to be sold, knowing quite well that he had not 
paid for it, and that the security might, and as he doubtless 
supposed would, by such act of his, be entirely cut off as to the 
mortgagee, who had sold him the property. There is nothing 
to show the least want of diligence on the part of the plaintiff. 
The money secured by the mortgage became due on the seven- 
teenth of September, 1853, on which day the sale was made to 
the defendant in Cleveland. This action was commenced in 
March following, by a citizen of New York. Shall he be 
allowed to enforce his lien under the mortgage in the courts of 
this state? 

The statute law of New York in regard to the record of chat- 
tel mortgages is, in the object and spirit of it, almost identical 
with ours. Mortgages or bills of sale of personal property, 
and intended to operate as such, must be accompanied by an 
immediate delivery, and be followed by an actual and continued 
change of possession of the thing mortgaged, or the instru- 
ment deposited with the clerk of the township where the mort^ 
gagor resides, or if a non-resident, where the prox>erty shall bo 
at the time of its execution, else, by the law of this state, the 
mortgage is void as against the creditors of the mortgagor, and 
as against subsequent purchasers and mortgageeB in good faith : 
R. S. Ohio, 1864, 815. 

The law of New York is founded in the same policy, and con- 
travenes no rights of our citizens, and is not at variance with any 
law, nor in violation of any principle of our government, either 

Dec. 1867.] Kanaga v. Tatlob.. 65 

mH, politiiml, or mond. Had the aame mort^gage bean exeeated 
and filed for record here, it would be our duty to give it effect, 
and protect the parties in their rights under it. The registry 
of soch instnunfints is required to be made at the place of the 
transactioii, or where the mortgagor may reside, in order to 
convey notice to others who may wish to become interested as 
porchaaeni or lien-holderBin the same property. It gives to the 
public the means of learning what has been transacted in rela- 
tion to the incombrance of property, and of deriving benefit 
from a knowledge of it, which, in the absence of such salutary 
regulation, would be in the secrets only of the inunediate par- 
ties interested, and might lead to the perpetration of frands 
upon innocent persons. "When that act is done which is neces- 
saiy to give validity to the contract, at the time, and in the 
place and manner pointed out, the whole duty in regard to it 
is at an end. It is not made necessary to go into other town- 
ships nor into other states to procure new registrations. The 
law has, for wise purposes, omitted any such requirement. 
Holding this instrument, then, as the plaintiff did, as a legal 
and valid one by the law in force where he obtained it, he was 
entitled to enforce it; but as the power to do that had been cut 
off by the removal of the prox>erty beyond the jurisdiction of 
the state, it vras proper for him to sue in the courts of thicb state, 
and to derive the same relief by his action as if he were pursu- 
ing a remedy where the contract was made: Off^Ut v. Flagg^ 10 
N. H. 46; Maartin v. J9tU, 12 Barb. 632. 

It is a general rule of international law that the rights of the 
parties to a contract, as distinguished from their remedies, are to 
be determined by the law of the place where the contract is to be 
performed. If a contract be made in one state or country, and 
it appears upon its face that it is to be performed in another, it 
will be presumed that the contract was entered into with refer- 
ence to the laws of the latter, and those laws will be resorted to 
in ascertaining the validity, obligation, and effect of the contract . 
This general rule, however, has its exceptions; one of which is 
that where a contraut is declared void by the law of the state or 
country where it is made, it cannot be enforced as a valid coc- 
tmct in any other, though, by its terms, it was to have been 
performed there: Eyda v. Ooodenaw, 3 Conn. 266. Bo if the law 
of another government is in conflict with our own i^tem of 
jurisprudence, or contravenes the policy of our government, 
there is no rule of comity or of international law which imposes 
on us the least duty to observe it. 

Ax. D«c. Vol.. LXX— r. 

66 Kanaga v. Taylou. [Ohio, 

In this case, as has already been shown, the New York hiw of 
chattel mortgages is entitled to full consideration for its hat^ 
monj with our own law upon the subject, and we feel no hesi- 
tation in giying effect to it. 

Qregoiy held the property subject to the condition of the 
mortgage, which was the payment of the money, as specified 
therein, or in case of default, the plaintiff was authorized to take 
possession of and to sell it. The default occurred after the 
property had been remored into a foreign jurisdiction. Gtregorj 
had no power to confer any better titie than he held; and those 
who might desire to purchase of him were bound by the rule of 
caveat emptor. True, there was no record of the mortgage in 
Ohio, but Qregozy was a stranger to Moore, and apprised him 
that his late residence was BufUo. This ought to have excited 
inquiry by Moore, which might quite as well have been instituted 
in Buffedo as in another county of this state. He cannot charge 
upon the plaintiff the consequences of this neglect of his. He 
took the property subject to the incumbrance upon it; and that 
amount, we think, was veiy properly found and reported by the 
\vaj in favor of plaintiff. 

The motion for a new trial is oyermled, and a judgment may 
be entered on the verdict. 

Swam, Bboobbhoiv, and Soott, 4 J., concurred. 

Babtlkt, 0. J., conourred in the judgment of the majority <»f 
the court, but diffsredas to the grounds upon which the majority 
placed it. 


PSRSORAL OoBTaAOXS, Q11I6H aiioth«r place in appointed for its perfomaaoet 
See notes to McAlMer ▼. SmUh^ 65 Am. Deo. 660, oolleoting prior oaaea. 

Lsx Fori Goynura Bdudt cton Pibsokal CoNraACXS: WUmm ▼. 
Hooper, 36 Am. Deo. 866; JHeAlUder ▼. Smiih, 65 Id. 651, and note 660, ooU 
looting prior eaaea. 

No Nation is Bound to BaoooNm oa Bniobcb Ant Oontraot whiob 
Is io jarioos to its own intereata, or to those of its own dtiaens, or whieh is in 
frand of its laws: Smith ▼. Ooifreif, 61 Am. Deo. 617; Pkhmeff ▼. BaUwm^ 
Id. 62, and notes 64. 

OoNTEAOT Void undnb Fobnign Law n Void RvxaTWHxas, and will 
not be enforoed in the home oonrts, althoagh it Is Talid under the home law: 
McAUiaUr v. Smiih, 65 Am. Dea 661, and note 660. 

Thk primoipal 0A8B WAS OTTBD In PnUtT V. SteiglUn, 27 Ohio St. 964, to the 
point that a devise in Jamaica of personalty in Ohio would be governed by 
the laws of that isUnd; and in Bank v. MeLeod, 38 Id. 180, that the righto of 
mortgagees under a foreign mortgage oonyering oertain rolHng stoeic of a rail- 
road, said stock being temporarily in Ohio, would be determined by the l» 

Dee. 1857.] Kanaoa v. Taylor. - 67 

iod amimeimtf wheD aneh oontraet was not oontniy to tfao polley of the laws 
of ObuH nor in oonfiiet with tiio righto of iti own oltlMOt. In noh • eooa^ H 
wu hold that thotr oourto would, by the law of ooodtyy onioffoo tho o uaton ol ^ 
and give it an ezttaterritorial opontion. 

BmoTAi. OF MoBxaAOKD PBomrr orao Avoran Bzatb.— 1. Omeral 
MkmSiaiea WkkJk ktnK AdopUd Polhif 4^ Reeordmg Martgage$ qf PenomU 
Propertjf — Obfeei qfJSegiatrf Latm, — ^It may bo ronaarkod that tho ranoval of a 
mortgagor from tho town in which ho reoided when the nMvtgigo waa exo- 
cnted, and whoro it waa duly rooordody and tiie taking of the mortgigod 
property with him, dooa not invalidate the reoord of tho mortgnge, or neoee- 
siuto the reoording of it again in tho town to which ho haa nmoved: Peajc 
T. OdaUareken^ 42 Gonn. 416; BUom y. .fiorrier, 66 liisiL 904; QfiOt r. Flagg^ 
10 N. H. 46; HoH t. Eemiek, 11 Id. 285; Bammm t. Tmnur, 60 lie. 127; 
Brigham ▼. Weaker, 6 Cnah. 296; JEKdb Y.WiOiams, 17 Barh. 623. The db- 
ject in reqniring a mortgage to be reoorded is to give poblioity to such oon- 
▼i^aacee, and to provide soaroes of information ofwrnnon to all persons, in 
order to enable porchasers, and creditors, and all others to determine with 
some degree of facility, oonTenienoe, and certainty the qnestion of title to 
property, whenever they may be interested to know it; while at the same 
time it ia not among the p*Mrpoees of the registry acts to sabjeot a bonaJUU 
mortgagee^ who Ib of cootso a creditor, to the inconvenience, if not impracti- 
caUUty, of the constant vigilance and ceaseless watching necessary to goard 
and secure his interest^ if he were obliged to record his mortgsge in every 
town into which the mortgagor might see fit to remove with the property. If 
he were reqnired to do this, the mortgagee's secariiy might be rendered 
worthless by a seiaare of the mortgaged property nnder prooeas of law at the 
instance of a creditor of the mortgsgor; or, as was done in the principal case, 
the mortgagor himself might pass the title to it by way of sale to an innocent 
pnrchaser: BoU v. BemUk, nqura. So if it be required that the mortgage 
shoold bo reonded in the county of the mortgagor's residence, his removal 
with the property to another county does not necessitate the recording of the 
mortgage a^iln in the county to which he removes: Bevan$ v. Atftoa, 81 Mo. 
437; Femi ▼. BoweU^eZM. 624. And the genersl rule ii, that a chattel mort- 
gage valid under the law of the state where executed will be so held by the 
oonrts of a sister state to which the property may be removed: Feurl v. J^oweB, 
mpray SmUh v. HvtekUgt, 30 Id. 380; OfvU v. Flagg, ntpra; Smith v. Me- 
Lean^ 24 Iowa, 331; Byan v. CkuUon, 3 Stiobh. h, 411; Jome$ v. Tafficr, 30 Vt. 
42; Fergmon v. Ciifard^ 37 K. H. 86; Barker v. Siaeg, 26 Miss. 477; Jiiariim 
V. HiU^ 12 Barb. 631; Blyttone v. Bwgett, 10 Ind. 28; Simms ▼. McKee^ 26 
Iowa, 341; HoUy. PUlow. 31 Ark. 32; BhodeldandCfeHtrtdBtrnkv. Da^fiirih. 
14 Gray, 123; Ames Iron Works v. FForrea, 76 Ind. 612; ^^^elois v. Hartford 
Bridge Co., 14 Conn. 683; Ta^ v. Boardman, 26 Vt 681; Coth v. BmtweU, 
37 Id. 337; WkUman v. Conner, 40 N. Y. Super. Ct. 330. Posseesion is merely 
prifliayacie evidence of titie; and a creditor of the mortgagor attaching the 
p r operly or a purchaser of it must, as was asserted In the principal case, look 
to the title, notwithstanding the holder of the property nuj ba^® recently 
ooaie from an adjoining state. There may be a mortgage upon the p r op er ty 
in that state; and a pnrchaser or creditor must ezerdse his diligence by in- 
quiring there, in accordance with the rule laid down in the principal case, 
whether the property is incumbered. The rule is similar to the one where 
the owner haa recently removed from another part of the same state— the 
purchaser or creditor is bound to inquire at such former residenoe of the 
for inenmbrancers there recorded: See casee inst cited. 

68 Kanaga v. Taylor. [Ohio; 

2. iVincipIe tipofi WhiA Oeneral Byle i$ Bat&L—U a iiu>itgage be 
▼■lid where it la made, if it be executed and recorded aocording to tiie lawe 
of the state or ooantry of iti execntioiit it will be enforoed in the ooarta of 
another state or ooantiy aa a matter of comity, althongb it is notexeonted or 
recorded according to the requirements of the law of the latter atate. And 
this is because of the general principle of law that the law of the place of 
oontraot governs as to the nature, validity, construction, and effect thereof: 
See the principal case, and Edgerly v. Budi, 81 N. Y. 199; MaHin ▼. ^tff, 12 
Barb. 631; Feurt v. Rowdl^ 62 Mo. 524; Blyatone v. DurgeU, 10 Ind. 28; 
AmM V. PoUer, 22 Iowa, 194; Snuth v. McLean^ 24 Id. 322; Simm$ v. Me- 
Kee, 25 Id. 341; HaU v. PiUaw, 31 Ark. 32; BeaU v. WUliamaon, 14 AU. 65; 
Barker v. Slacy, 25 Miss. 471; Langworthy v. Litde, 12 Cush. 109; Bhode 
laland Central Bank v. Danforth, 14 Giay, 123; Ferguatm v. Cl^fford^ 37 N. 
H. 86; QfffUt v. Flagg, 10 Id. 46; Ames Iron Wark$ v. Warren, 76 Ind. 512; 
8. C. 40 Am. Rep. 258; Wilson v. Carson, 12 Md. 54; Byan v. Clanton, 3 
Strobh. L. 411; Bigelow v. Ilariford Bridge Co., 14 Conn. 583; Tyler v. Strang, 
21 Barb. 198; ^tcAoJs v. Mass, 25 Hun, 640; WhUman v. Conner, 40 N. Y. 
Super. Ct. 339. This may be illustrated as follows: Where a mortgage waa 
made in New Hampshire of property situated there, and recorded so that no 
change of possession became necessaiy for its validity under the laws of that 
state, and afterwards the property was removed to Vermont, where at the 
time no mortgage was valid without a delivery of possession, and it was 
there attached by the debtor's creditors, it was held that the mortgagee 
might recover it from the attaching officer, because his lien, being valid by 
the laws of New Hampshire, was equally valid in Vermont: Cobb v. BusuM, 
37 Vt 337; Taylor v. Boardman, 25 Id. 581; Jones v. Taylor, 30 Id. 42, 
overruling Sk^fv, Solace, 23 Id. 279. By a legal fiction, personal property ia 
supposed to adhere to the person of the owner, and, unlike real property, to 
be governed by the law of the place where the owner is domiciled, and not 
by the law of the sittts of the property. This doctrine rests upon the maxim, 
Mobitia ossibus it^h(Ere7ii, But an assignment of personal property, by way of 
mortgage, la an exception to this general rule. The law of the situs, and not 
the lex doftUcUii, governs chattel mortgages. Expressed in other words, a 
mortgage of chattels is governed by the law of the place where the chattels 
are located at the time of the execution of the mortgage. Thus it will be 
seen that this fiction is not of universal application, and must yield whenever 
it is necessary for the purposes of justice that the actual situs of the thing 
should be examined: Ames Iron Works v. Warren, 76 Ind. 512; S. C, 40 
Am. Rep. 258; Clark v. Tarbell, 58 N. H. 88; Green v. Van BusHrk, 7 Wall. 
139. Every state has entire jurisdiction over all property, personal as well 
as real, within its own territorial limits, and the laws of the state regulate 
and control its sale and transfer, and all rights which may be affected thereby. 
So where a state court is administering justice between its own citixens alone, 
it will determine the right to mortgaged property which has been removed to 
a foreign jurisdiction. A strong illustration of this is found in Edgerly v. Bush, 
81 N. Y. 199, where a resident of the state of New York executed a mortgage 
upon a span of horses to another resident of that state. The horses at that 
time were in the state named. Subsequently the mortgagor took the horses 
to Canada, where they were sold by a regular trader dealing in horses to on* 
who purchased in good faith, without knowledge of the mortgage. Under 
the laws of Canada, property cannot be reclaimed from one so purchasing 
without refunding to him the price paid. A resident of New York after- 
wards bought the horses of suclt purchaser, but left them in Canada. Tha 

Dec 1857.] Eanaga v. Tatlob 

■ortgagee deniMided the hones of the ksfe pmroheeer, and in ea aetton 
broaght IB New York agBinei him for their oan v et i ion» wm held entitled 
to reooTer. Folger, J., in delivering the opinion, leads "The tew of the 
domici le , mnd the law <^ the then eitee of the p r op e rty, and the law of the 
fomm in which the remedy ia eonght. all oomeor to instain the right of the 
pl a in ti ff . The law of the domicile of the owner d perMnal property, aa a 
general mie, determinee the Talidiiy of every truisfer made of it by him. 
^y that law, as it exiati in thia case, the plaintiff became the owner of tUa 
property before it was taken beyond ite operation. By that law, too^ an 
owner of pr o p er ty may not be diveated of it without hie oonaent or by due 
prooeaa of law; i^ainly not by a dealing with it by others without Us knowl- 
edge, aaoent, or procurement. Still, another state may make prorision by 
statute in respect to personal property actually within its jurisdiction. 
Though a transfer of personal property valid by the law of the domicile is 
valid everywhere, as a general principle, there ia to be ezoepted that territory 
in which it is situated and where a different law haa been set up, when it b 
neoeesary for the purpose of justice that the actnal sites of the thing be exam- 
ined: Oreen v. Van Buskirk, 7 Wall, 139. Yet the sUtutes of that land have 
no extraterritorial force proprh vigore, though often permitted by comity to 
operate in another atate for the promotion of justice, where neither the state 
nor its citiacns will suffer any inconvenience from the application of them. 
The exercise of comity in admitting or restraining the application of the lawf 
of another country must rest in sound judicial discretion, dictated by the cir- 
eamstanoea of the case: Per Parker, C. J., in Blanehard v. Ru$aeiU 13 Mass. 
4L It is plain that on no principle of comity applicable to this case could the 
eale of the plaintiff*s property by another having no authority from him, to 
his wnmg, indeed, be upheld, save that it was authorised by the statute of 
Lower Canada. So that the question is one entirely of the comity to be 
ehown by the courts of this state to the enactmenta of another country. 
Thoee statutes not only enact the rule of market overt as it prevails in gen- 
eral in England, but carry it further, and make, aa in the city of London, 
every sale by a trader dealing in like articles as good as a sale at market 
overt. That role does not obtain in this state. It has not been our policy 
to establish it. Our policy has been, and is, to protect the right of owner- 
ship, and to leave the buyer to take care that he gets a good title. It would 
be to the contravention of that policy and to the inoonvenienoe of our citizens 
if we should give effect to these statutes of Lower Canada, to the divesting of 
titles to movables lawfully acquired and held by our general and statute law, 
without the assent or intervention and against the will of the owner, by our 
law. Notions of propriety are slight when a bona fide purchsse of stolen 
goods gives a good title against the original owner: Per Kent, C. J., in Whed- 
right V. Dfpeyster, 1 Johns. 470. We are not required to show comity to 
that extent; especially as it is to our citizens alone that we are adminiitering 
justice.'* In some states, possession of the mortgaged property by the mort- 
gagor after maturity of the mortgaged debt does not invalidate the mortgage. 
And a mortgage duly executed in one of those states wss held valid in Illi- 
nois, where the property was taken there by the mortgagor in possession, 
against a creditor of the mortgagor, notwithstanding the law of Illinois that 
possession in the mortgagor would be fraudnlent per m as to the mortgagor's 
creditors, had the mortgage been executed there: Mur^ford v. Ccutiy, 50 111. 
370. So a mortgage of personal property made by a citizen of one state tern* 
porarily iu anotlier state ynlh such property, if valid by the law of the plaos 
where made, is valid in the lormer state against the creditors of the morir- 

70 Kanaoa V, Taylor. [Ohio, 

gagor who afterwards find the property io the former state in the mortgagor's 
possession: Langworthf y. LUUe, 12 Cosh. 109. 

3. Lex 8itu$ Oovem$ when a mortgage is executed in a state other thaa 
tliat in which the property is situate. Though it be executed aooording 
tu the requirements of the law of the domicile of the owner in another state, 
tlio mortgage will be invalid as against attaching creditors in the state where 
the property is located, unless the mortgage conforms to the laws of the latter 
itate. The mortgage, to be valid, must be executed, acknowledged, and 
mcorded according to the law of the place where the property is at the Ume. 
This, however, is not properly included in the scope of this note; but as it is 
Bo intimately connected with it, a few authorities will be cited illustrating 
the whole doctrine, and reflecting some light upon the subject of the note at 
krge: See Oreen v. Van Budsirk, 7 Wall 139, overruling a C, 2 Keyes, 119; 
Oolden r, Caekrilt I Kan. 259, reviewing the cases, citing the principal case, 
and distinguishing it from the one at bar; Denny v. Faulkner^ 22 Id. 89; Edgerijf 
V. Bush, 81 N. Y. 199; Clark v. Tarbell, 58 K. H. 88; Ilardawa^ v. Semmes, 
38 Ala. 657; Amulron Wori»y,WatTen,761jid. 612; OuiOanderY. Howell, 2& 
K. Y. 657; Whitman v. Conner, 40 K. Y. Super. Ct. 839; Runyon v. Oroahon^ 
12 N. J. Eq. 86; Bice ▼. Caurtia, 32 Vt. 460; Martin y. Potter, 34 Id. 87. 

4. Exception to Cfeneral Bule prevails in those states which have not 
adopted the policy of recording chattel mortgages. For instance, a chattel 
mortgage is wholly unit no wn to the laws of Louisiana, and the courts of that 
state do not feel bound by the comity of nrjions to enforce a mortgage upon 
personal property made in another state: Delop v. Windsor, 26 La. Ann. 186. 
So in Pennsylvania, where the rule of the common law prevails, by which a 
sale or mortgage of personal property, unaccompanied by delivery of posses- 
sion, is void aa against the iDtervening rights of creditors and purchasers, it 
is held that, while a mortgage made in another state and duly recorded there, 
so that it is valid there without any delivery, might be enforced by the oonrti 
of Pennsylvania as between the parties, these courts would not enforce such 
a mortgage as against a creditor or purchaser who had acquired rights in tha 
property after it had been removed to that state: MacCabe ▼. Blymyrt, 9 
Phila. 615. In this case it was said, per Hall, J.: '*By the comify of na- 
tions, as a general rule, a contract valid where it is made is valid everywhere, 
and the law of the place of the contract controls as to the construction of ik 
Without this rule, there could not safely be commercial or business inter- 
course between citizens of different nations. But the laws of a nation or 
state have not, ex propria vigore, any binding force beyond the limits of its 
territory. Any effect they have is ex comitate. And the judicial tribunal in 
Pennsylvania must determine how far comity is to be permitted to interfere 
with the domestic interests and policy of the state. As between the parties 
to the chattel mortgage, Pennsylvania courts could safely enforce the validity 
of the mortgage, and would do so. There would be no public interest or 
policy of law that would require us to hold the bill of sale or mortgsge Toid, 
as between the parties to it, for want of delivery of possession of the chattel 
But it would be an extraordinary stretch of comity that would induce a court 
here to hold that a Maryland chattel mortgage shall be made the means of 
defraadiojr our own citizens. Either the lex ret $itm must prevail over the 
trx tod contractus, or we must open a wide door for fraud, to the detriment 
of citizens on both sides of the border. Would it be reasonable to require 
that the defendant should have first ascertained where this migratory doctrine 
came from, and then have liad the records of all the courts in Maryland 
Marched for chattel mortgages ? Or is it fairer to hold that the mortgageea. 

Dec 18o7.] Kanaga v. Taylor. 71 

by allowing the iiuMrtg»gor to retain poawiaion of the hotaa and bring H into 
Pennsylvania, and exercise notoriooa acta of ownership, lost their rights 
under the mortgage aa against as interrcning Pennsylvwii* oredttor or pur- 
chaser. No people are buiind to enforce a contract in contraTention of their 
public law and policy. Whilst a lien created by the kx lod will generally 
be enforced wherever the property may be fonnd, yet this is not necessarily 
so in preference to claims arising under the kx rei ssCa The comity extended 
to the Usx loci mnst yield to the positive law and public interests of the place 
where the remedy is sought.** 

& EquUable and SUUutory ProteetUm o/Mcrtgagu*9 RightB StaMet BeUh 
Hve to /Recordation of AIortgage», — A provision is frequently inserted in mort- 
gagee to the effect that if the mortgagor attempts to sell or remove the mort- 
gaged property without the written consent of the mortgagee, the latter may 
take immediate posaessioin of it. A protectory provision is also sometimes 
inserted, enabling the mortgagee to take possession whenever he may deem it 
necessary for his protection, even before the maturity of the mortgsge debt. 
Again: equity has jurisdiction in such caaes, before default, or before the 
mortgagee can proceed at law to interfere and restrain the removal of mort- 
gaged chattels beyond the jurisdiction of the court. But the mortgagor is 
not to bo hindered in the legitimate use of the property, and a mere tempo- 
rary removal of it out of the state, accompanied by an honest intention to re- 
tam it before the maturity of the debt, and without any intention to defeat 
the rights of the mortgagee, will not authorize the interference of a court of 
equity. Thus if a mortgagor drive a horae and wagon, the subject of the 
flBortgage, into a neighboring atate, for the purpose of making a brief visit, 
vith the manifest intention of returning before the law day of the mortgage, 
there is no ground for equitable interior ence, withoat furUier proof that the 
rights of the mortgagee will be defeated by such removal: Wcdher v. lioilford^ 
67 Ala. 446. It is easy to see from this and aimilar cases that the rights of 
the mortgagee might be defeated by the mortgagor's change of heart while 
temporarily within the domain of a foreign jurisdiction. A new intention 
never to return might be bom. So, in addition to protectory clansss in the 
mortgage, and the right to protection in equity, it haa been found necessary 
to protect him by general enactmenta respecting the removal, concealment 
and sale of the mortgaged property by the mortgagor. These statutes are 
penal in their nature, and make the removal or sale of mortgaged property, 
without the consent of the mortgagee, a criminal offense, punishable by fine 
or imprisonment. These statutes throw a safeguard around business transao- 
tiona anil commercial intercourse. These statutes are given in full for each 
state in Jones on Chattel Mortgages, sees. 002-^1. If no effectual reoord of 
the mortgage can be made under the statute, the mortgagee must protect him- 
self by taking and holding actual possesrion of the property. Such is the case 
where the mortgagor resides out of the state, and the statute provides for the 
recording of the mortgage at the mortgagor'a place of residence, but does not 
provide for recording it in the place where the mortgaged property is situ- 
ated: SmUh V. Jiioortf 11 N. H. 66. A statute which requires a mortgage on 
property brou^^t from another atate to be recorded within a limited time, 
and on failure of such record makes such property liable to the debts of the 
person in possesrion, but is rilent as to purchasers, does not make invalid as 
to the latter a mortgage valid in the state where it was executed. In the 
absence of any express provision of the statute invalidating such mortgages 
as to pnicbasen^ it is the duty of the court to infer that the legislature did 
not intend to change the law as to them: BeaU v. WtUiammnK 14 Ala. 65. A 

72 Mahsu v. Stephe^^son. [Ohi<K 

statute reUting to the reoording ol mortgaget hat no applicalioii to a mort- 
gage made oatside the etate, nnleas expressly made so, though the property 
be afterwards brought within the state: Feurhankt v. Bloomfidd^ 5 Doer, 434| 
and the fact that a oitisen of the state made such a mortgage while tempora- 
rily absent in another state with the property does not alter the matter: Lcmg- 
worthy V. LiUief'l2 Cnsh. 100. If the mortgage be duly recorded in the stato 
where it was exeonted, and the mortgagor afterward take the property witb 
him into another state, no recordation of the mortgage in the latter state la 
necessary, unless made so by positive statute of the latter state: Beall v. WU- 
Ikwuon, 14 Ala. 65; OfiiU v. Flagg^ 10 N. H. 46. In Michigan, nnder a stat- 
ute making no provision for the recordation of a non-resident's mortgage, aa 
eflfoctnal mortgsge can only be made by the mortgagee's taking poeseesion: 
JimUgomery y.Wight, S Mich. 143. In that state it is held that a mortgage 
exeented and reoorded in another state is not valid against the claims of at- 
taching oreditOTB, when the property has been removed to that state. The 
rule in that state is an exception to the general rule that a mortgage, valid 
by the laws of the state where it was executed, and where tlie property was 
at the time^ is valid in any other state to which the property may be removed, 
without further registration, unless the laws of such other state require the 
recordation of the mcrtgsge in that state when the property is removed to it: 

6. Las IMf BMenot^ PresumpUon, PUeui^,^ -The remedies upon a mdrt* 
gage executed in another state or country arv determmel by iL« •«• /i/n. 
Remedies upon such chattel mortgages are regulated exdusivdiy by the laws 
of the state to which the property is removed, and in which the creditor 
seeks to enforce his rights, or any party in interest seeks to pursue anydaim 
sgainst the subject-matter. The lex fori determlues whether such mortgaged 
property is subject to attachment, and also the proper mode of proceeding in 
making the attachment: Fergu&on v. Clifford^ 37 N. U. 80. In determining 
whether a mortgage was executed according to the laws of a foreign state, 
those laws must be proved as facts by evidence addressed to the court, and 
not to the jury: Id. A chattel mortgage is presumed to have been executed 
in the state where it is sought to be enforced until the contrary appesrs: 
FramMtk v. Taunton, 8 Blackf. 160; BtUchifu v. //cmna, 8 Ind. 633. But 
there can be no such presumption when the mortgage purports to be exeonted 
in another state: Blytione v. BurgeU^ 10 Id. 28. And if the mortgagee 
relies upon the statute of a foreign state to establish the validity of his mort- 
fB^B^ it must be spedally pleadedt Id.^ Shaw v. YToocf, 8 Id. 618» 

Mabsh v. Sxefhenson. 

[T Omo Buam, 96A.] 

Dnponnov of Subplits Land whbrx Calls or Don do hov IsoLonv 
All Land Imtbvdkd. — Under an order of chanoery, the several loti of 
a block of land were sold to different persons, the conveyances being 
similar in form, and referring to a recorded plat for description. The 
descriptions in the deeds by metes and bounds did not call for so much 
land as the block contained, though the recorded map showed the whole 
block was intended to be included. HM^ that the surplus land should 
be ratably apportioned among the grantees. 

Dec 1857.] Mabsu v, SStephxhbox. 73 

TuHEPAfls. Block No. 8 of Cinciniiati was oompoeed of sixteen 
lots lying in two tiers, the northern one being numbered from 
one to eighty and the southern one from nine to sixteen. The 
lots were sold at public aaction, under an order made in a pro- 
reeding in chancery. Marsh purchased lots 8, 15, and 16, and 
F^tephenson the others. The sale was confirmed and a deetl 
nade to Stephenson May 21, 1838, and to Harsh on l£ay 28, 
1838. The lines were not staked out, but the comers of the 
block were known, and the lots were described by number and 
as fronting fifty feet on the street, except Nos. 8 and 16, which 
fronted twenty-fiye feet, and scTenty-nine feet eight inches 
respectively, owing to the block being trapeeoidal in form, the 
streets on the sides of the block not running paialleL The 
deeds also referred to a plat on file for further description. 
The block upon actual measurement proved to hare about ten 
feet more frontage than either the calls of the deed or the plat 
on file called for. Stephenson took possession of three hundred 
feet frontage, but afterwards learning of the surplus brought 
ejectment against Marsh for the land described in the deeds to 
him. Marsh, though served with notice, did not enter into the 
consent rule, and Stephenson obtained judgment Marsh had 
put up a fence where Stephenson had first fixed his line, and 
the latter, claiming pofisession under the judgment obtained by 
him, moTcd the fence to a distance three hundred and seren 
feet and three inches from the comer. Whereupon Marsh 
brought an action of trespass. Upon the trial in the common 
pleas, the court held that Marsh was entitled to all the surplus, 
but upon error this judgment was reversed by the district court 
The present petition in error seeks to reverse this judgment 

Caldwdl and Paddock^ and B. B. Warden, for the plaintiff in 

Fbx and I^rench, for the defendant in error. 

By Oourt, Soott, J. If Marsh, the plaintiff, is entiUed to 
hold all the surplus ground in square No. 8, then the district 
court erred in reversing the judgment of the common pleas; 
but if he is not entitled to any of it, or only to apro rata share 
of it, then the judgment of the district court must be affirmed; 
for it is not daimed that Stephenson, by the alleged act of tres- 
pass, appropriated more than Hie pro rata share of the surplus. 
The testimony shows that Stephenson has only occupied to a 
line three hundred and seven feet three inches east of Cutter 
itreet, and that between this line and John street. Marsh has in 

7^ Mabsh v. Stepuexsok. [Ohio. 

his possession one hundred and tbirtj-two feet nine inches. Is 
he entitled to more? We have no doubt either as to the law or 
equity of this case. Neither of the parties acquired a right 
superior to that of the other in respect to this surplus, by their 
deeds, bj the recorded plat referred to in their deeds, or by the 
description accompanying the return of the appraisement of 
the several lots, made by the sheriff and freeholders prior to 
the sale. 

In all these evidences of title they stand on an equal footing. 
The description in the appraisement gives to each of Stephen- 
son's lots 9, 10, 11, 12, 13, and 14, a front of fifty feet on the 
north side of Clinton street, making in all a front of three hun- 
dred feet; and also gives a definite location to these lots by a 
reference to a fixed monument, to wit, the north-east comer of 
Olinton and Cutter streets. 

The same description gives to Marsh's lot No. 15 a front of 
fifty feet, and to No. 16 a front of seveniy-nine feet eight inches, 
on the north side of Clinton street, making an aggregate front 
of one hundred and twenty-nine feet eight inches, and gives to 
the premises a definite location by bounding them on the east 
by John street, an equally fixed monument. The plat gives to 
each of Stephenson's lots a width of fifty feet; and to Marsh's 
lot 15 the same width of fifty feet; and to 16 a width of seventy- 
nine feet eight inches. The lots were all sold by numbers, at 
the same time, by reference to the plat; and, as would seem from 
the evidence of the sheriff, were each sold as being of the width 
indicated by the plat, more or less. The deeds, executed by 
the sheriff to the parties, are similar; they each describe the lots 
by numbers and by reference to the same plat; they each assign 
to the several lots the width or front indicated by the plat, with 
the addition.of the words " more or less." 

The plat includes all the ground between Cutter and John 
streets, and there can be no doubt that it was all intended to Imi 

There were no stakes fixing the division lines of the lots, and 
the words " more or less " in the deeds, together with the faoe 
of the plat, render it certain that the whole was intended to 
pass by the sale and conveyance. Under these circumstances, it 
would seem equitable that the surplus should be ratably appor- 
tioned between the grantees. And to this effect are the authori * 
ties: Lincoln v. Edgecourt, 28 Me. 279; Brown v. Oray, 3 Id. 
129. If the quantity falls short, each grantee must sustain hia 
portion of the loss: WycUl v. Savage^ 11 Id. 431. The same prin* 

Oea 1857.] Johnston v. Cleveland etc. R R Co. 75 

etple has been aetUed in Wd/e v. Scarborough, 2 Ohio St. 863. 
And the manifeBt eqnity of the role most command approbation. 

Bat were it otherwiae — ^if Stephenson takes nothing bj his 
deed but the three hundred feet represented on the phit — the 
same role most limit the pLuntiff Marsh to one hundred and 
twentj-nine feet eight inches, for he stands on the same groond, 
and must be gOTemed bj the same phiL This would give the 
soxphis to Betts, and would be equally fatal to the plaintiff's 

We are unable to see, either in the trapeaoidal form of lots 8 
and 16, or in the numbering of the lots from west to east» any 
substantial reason for changing the equitable rule. The aame 
rule of conBtruction must be applied to the deeds of each party. 

It ia unneoesaaxy, therefore, to inquire how far the chum of 
Stephenson was strengthened by the proceeding in ejeetment. 

Judgment of the district court affirmed. 

Bastlbt, 0. J,, and Swah, BKiSKEBaaww, and Soniiv, JJ., 

Dexdb amm to bb Oohbibusd Most SnuuroLT lOAnai QttuncoL tor tha 
beoefit off the gnotoe: Bwdd ▼. Brooke, 4S Am. I>60. S21, and note 889; CU$ 
«/ Alum ▼. lUmoi* T. Co., 52 Id. 470L And, as In tha prindpal oaae, tha 
coort moat ooDstene a grant io aa to aflbotoata tha InteDtSon of the partiea, 
pioTided the tenna nied in it will admit of ineh a oonatraetion: Bwdd r. 
Bnoie, 43 Id. 821, and ouea dtad in note therato 839. And where tha 
worda *' more or Ion " were naed in a dead, aa in the principal caae, and the 
^joantity of land waa described aa '* containing by deed two hnndred acres, be 
iSb» same more or lees," and it appeared from a sabaeqnent survey that the 
tract contained three hnndred and fifteen aoree, it waa held that parol evi- 
dsnae waa InadmiaaiMe to piofa that the partiea Intended a sale of a leai 
^aantitj than the entira tnMts £hk ▼. AnM, 12 Id. 64. 


[7 Omo Buam, as.] 

Administbatob mat Maihtaih Aonov loa BurxfiT of Kizt or Kix or 
DscxAsan, nnder ststate of liareh 25, 1851, en titled "An act reqniring 
compensation for causing death by wrongful act, neglect, or default,** and 
ginog a right of action for the ezdnsive benefit of the widow and next 
of kin; although deceaaed leave no widow or children, and though the 
petitum do not contain a statement of special circumstancea rendering 
the death a pecuniary injury to such next of kin. Such special circum- 
stances affect only the amount of the recovery. 

Demubbkb to petition. The facts are stated in the opinion. 

7G Johnston t;. Cleveland etc. R. R Co. [Ohi<v 

if. B, and R. Waite, for the dofendant* in sapport of ib» 

Commager and Lemmon^ for the pudntiff. 

By Court, Soott, J. This case, by the reaervatioxi of the 
district court, comes before us on demurrer to the plaintiff '» 
petition, which reads as follows: 

" Dayid Johnston comes and says he is the administrator of 
David Lyons, late of said county of Lucas, deceased, duly ap- 
pointed according to law; that said David Lyons, while in life, 
to wit, on the thirtieth day of January, 1855, and before thai 
time, was in the employ of the Cleveland and Toledo Railroad 
Company, the defendant aforesaid, in the county of Lucas 
aforesaid, and on the day and year aforesaid was employed as a 
laborer in the employ of said company on the steam ferry-boat, 
then and there used by said defendant in connection with the 
railroad of said defendant, in the carriage and transportation of 
passengers and freight across the Maumee river at Toledo; and 
while said David Lyons, now deceased, was so engaged under 
the directions of the agents and superintendents of said defend* 
ant, the said David Lyons, by the vrrongful act, neglect, and 
default of the said agents and superintendents of the defendant 
aforesaid, while they were concerned in managing and conduct- 
ing the business of said defendant, was bruised and mangled 
by the machineiy of said boat, and was thereby thrown into the 
water, and he, the said David Lyons, became and veas drowned, 
and so the plaintiff says the death of said David Lyons veaa 
caused by the wrongful act, neglect, and default of said de- 
fendant, and without the fault of said Lyons. 

" And the plaintiff further says that Thomas Lyons, Maurice 
Lyons, Catharine MulverhiU, Cornelius Lyons, Maigaret Lyons, 
Ann Lyons, and James Lyons are next of kin and brothers and 
sisters of said David Lyons, deceased; the said David Lyons, 
leaving no widow, and having no children or child, left the said 
brothers and sisters aforesaid the heirs at law of him, the said 
David Lyons, deceased; and that they, the next of kin of him, 
the said David Lyons, deceased, have suffered damages, by 
reason of the aforesaid wrongful act, neglect, and default of 
the said defendant, its servants and agents, in the sum of five 
tbousand dollars. Wherefore the plaintiff says he has a right 
to recover said sum of five thousand dollars, and asks judgment 

The action is founded uix>n a statute of this state, entitled 

I^QC 1857.] Johnston v. Cleveland Era & R. Ca 77 

" An act requiring oompenBation for cansing death bj mongfal 
•aet. neglect, or default/' passed March 25, 1851, which is in the 
following terms: 

" See. 1. WheneTer the death of a person shall be caosed by 
wrongfal act, n^lect, or default, and the act, neglect, or de- 
lault is snch as would (if death had not ensued) have entitled 
the party injured to Tnaintain an action and recoTcr damages in 
respect thereof; then and in every such case the person who 
or the corporation which would have been liable, if death had 
fusi ensued, shall be liable to an action for damages, notwith- 
standing the death of the person injured, and although the 
4eath ahall have been caused undeor snch droumstanoes as 
amount in law to murder in the first or second degree, or man- 

"Sec. 2. Every such action shaU be brought by and in the name 
of the personal representative of such deoeaeed person, and the 
amount recovered in every such action shall be for the exclusive 
benefit of the widow and next of kin of such deceased person, and 
ehall be distributed to sueh widow and next of kin in the pro- 
portions provided by law in relation to the distribution of per- 
eonal estates left by persons dying intestate; and in evexy such 
fiction the jury may give such damages as they shall deem fair 
and jost, not exceeding five thousand dollars, with reference to 
the pecuniary injury resulting from such death, to the wife and 
next of kin to such deceased person; provided, that every such 
action shall be commenced within two years from the death of 
euch deceased person:" Swan's B. S. 707, 708. 

The question presented by the demurrer is whether, under 
this statute, an action can be maintained for the sole benefit of the 
brothers and sisters of a deceased person who leaves no widow, 
without an allegation in the petition of such special ciroum* 
etances as would render the death a pecuniary injury to them. 

A right of action is given by this statute to the personal rep- 
resentative of the deceased, merely as a trustee, and for the 
exclusive benefit of the widow and next of kin. Hence it 
would seem to be clear that in order to the maintenance of the 
eotion there must be a widow or next of kin to whom the 
amount recovered could be distributed. And so it was held, 
under a similar statute of New York, in Lucas v. N. F. Cent. R, 
R. Co., 21 Barb. 247. 

But if there be persons in whom the beneficial interest in the 
judgment to be recovered can vest, then the only other condi- 
tions to which the right of action is subjected by the terms of 

78 LocKwooD V. Mitchell. 

ihe Btatate Aie* 1. Tlu^ tbe death shall have been catieed hy 
rach WTongfo] act, neglect, or default, as would, if death ba^ 
not ensued, have entitled the party injured to maintain ai^ 
action against the defendant, and recoTcr damages in respect 
thereof; 2. That the action be brought by and in the name o^ 
the personal representative of the deceased; and 3. That it be^ 
commenced within two years from the time of his death. 

Subject to these conditions, the statute gives a right of ac- 
tion; and seems to regard the widow and next of kin as sustain- 
ing at least a nomixsal pecuniary injuzy, in all such cases, fron^ 
the wrongful act of the defendant: Quin v. Moore , 16 N. Y. 432. 

Questions may arise upon the trial of this cause as to the- 
construction of the rule of damages furnished by the second 
section of this statute; but no such questions are properly 
before us. The question raised by the demurrer does not relate 
to the amount of the recovezy, but is, simply. Can an action be- 
maintained on the case stated in the petition? We think ii 

Demurrer ovezmled. 

Babtlbt, 0. J., and Swah» BR i w i aaHa rF^ and Suixor, JJ.^ 


§j : • :^ 

[7 Ohio Sxavs, 887.] 

Ooimukor «o Pat Monxt, Made and to be Pkbvobmbd or Ksw Y<am^ 
will be gorerned by the 1aw« of that state relatiiig to nntiy, althoo^ the* 
loan ia eeoared by a mortgage npon lands In Ohiow 

ALUDOAnoiiB Am) PBoor that W&mxM Conthact u HOfr U8UBioim». 
wheie it appears to be so, most be explicit, and olear of all doabt 

ExcisB or Ihtibbst Pato uvdkr Usubious Contaaot mat be Arrum 
in pajrment of Interest afterward aoeniing, wh«re nsnry is pl ea d e d 
proved, bnt fotf eitnre of the loan is not prayed for. 

SmoT or FosioLosinii Sals SirBORDiVATS to Pbiob Ck>inraACT. — A 
tract iras made by which it was stipulated that a f oreolosare and sale- 
should be had; that such sale should not operate as a satisfaction, nor 
divert the lien; that the purchase money should not be applied to pay 
the mortgsge debt; and that the purchaser should take the land in trosl. 
to sell, and thus pay off the mortgage debt: ffddp that the decree and 
sale made pursuant to such contract must be regarded as part of the eon* 
tract, and subordinate to it. 


is not obljgatory upon him. A decree made pursuant to such a contract 
Buy be valid and operative as to innocent third persons, but the psfw 
with notice will hold in trust for the innne 

Dec 1857.] LocKwooD v. Mitchslu 79 

Whirb Suit Impxacouig Moktoaos Dsn ior UamT is Dbkhbid mrDim 
Ukauthouzkd CoMTRAcr, tad in prejiidioe of aa famae aiortgiigor't 
rights, thero being iu fact luiiry m the tnanetioo, the UiMtoua of th« 
lunatic, npon being required to aeoount to the mortgifor for the prioei- 
pal and intereat, are eotiUcd to a ctedit of all ezoeH of intHeat paid 
beyond the lawful rate. 

OoBTRACT Mai>k bt BEPBBnHTATiTia OF DaoMASKD Paktsheb, wlthoot 
anthority, and touching mattera over whieh the aorriviiig partner had 
entire controI» will be oooaidered as wholly inoperatiTe to affsot the 
righta and eatate of the firm when it is dedarad inoperative as to the 
anrriving partner* 

Cemscbby. Qeoige and Balph Lookwood were purtnen doing 
businees in Milan, Ohio. In 1836, being financially embanaaaed , 
thej entered into a contract with ICtchell and Crawford, resi- 
dents of New York, agreeing to pay said Mitchell and Crawford 
four hundred dollars if they wonld procure a loan of eight thou- 
sand dollars to said Lockwoods. The loan was made by Mitchell 
and Crawford themselyes, the money advanced in New York, 
and a mortgage taken by them on certain lands owned by the 
Lockwoodfl in Ohio. Interest was paid to April 1 , 18i2. Balph 
Lockwood died in 1838. George Lockwood became insane 
shortly after, and his son, James C, in 1843 sent him, without 
judicial authority, to the lunatic asylum. Meanwhile Mitchell 
bad brought several ejectment suits to recover the mortgaged 
premises, and Gtoorge Lockwood had employed Le Grand Mar- 
vin, an attorney of New York, to file a bill in chancery, alleging 
the note and mortgage to be usurious and void. An injunction 
was granted, and a motion to dissolve it made, but iras not 
pressed to a hearing. In this condition of aflEeurs, IGtchell and 
Crawford entered into a contnct, which was denominated a 
family contract, with James C. Lockwood, who was attending 
to his father's business without any legal authority. The sub- 
stance of this contract is stated in the opinion. Pursuant to 
this, the actions in ejectment and suit in chancery were dismissed, 
the mortgage then in James C. Lockwood's hands foreclosed, 
and the properly bid in by JamesC. Lockwood. James C. then 
sold a portion of the land to Mitchell and Crawford in 1846. 
The land had greatly increased in value, and they sold a portion 
of the lots conveyed to them for fourteen thousand dollars, much 
more than the amount loaned, with intereei. In 1846 O^rge 
Lockwood, his faculties still in the same unsound condition, was 
discharged from the asylum. In 1849 he filed a biU in the court 
of common pleas, setting forth the facts stated, and declaring 
the four hundred dollars paid to Mitchell to be a usuriouf 

LocKwooD V, Mitchell. [Ohio, 

adTanoement* and that the sale made under the family contract 
was Toid. Mitchell and Crawford alleged the contract to be 
honest, and stated reasons for the advancement of the four hun- 
dred dollars, which appear in the opinion. The court dismissed 
the bill of George Lockwood, and a petition in error in the nature 
of a bill of review was filed in this court, which reversed the 
decree of the district court, and retained the cause for further 
hearing and decree. 

Homer Ooodwin and C. P, WolooUf trustees, for the oomplaiii- 


S, F, Taylor, for James G. Lockwood. 

W, F. Stone and N. H. Swayne, for Mitchell and Crawford. 

S. T, Worcester and Le Orand Maarvin, for the executors and 
heirs of Ralph Lockwood. 

EbeneMer Andrews, for the other defendants. 

By Court, Swah, J. 1. Was the loan of eight thousand dollars, 
in respect to the question of usury, to be governed by the laws 
of New York or of Ohio ? The contract for the loan was made 
in the state of New York; the money was advanced there, the 
note and mortgage delivered there, and the loan was to be re- 
paid there. The fact tiiat one of the incidents of the debt con- 
sisted of a lien, by way of mortgage, upon lands in Ohio, to 
secure payment, does not change the law in this respect. It 
was a contract not only made but to be performed in the state 
of New York, and must be governed by the laws of that state. 

2. Was the loan usurious ? Four hundred dollars, being five 
per cent on the loan, was paid to MitcheU. What was the con- 
sideration of thisf The written contract of March 17, 1836, 
given above, states substantially that it was in consideration 
that Mitchell would advance and loan to the Lockwoods eight 
thousand dollars at a future day. On the face of the contract, 
and by its terms, the four hundred doUars was an open and un- 
disguised gratuiiy for the loan of money over and above the 
seven per cent interest on the loan. Mitchell, in his answer, de- 
nies this, and assigns the usual reasons which lenders give for 
withholding a loan from an unfortunate borrower; bank bills in 
Westchester county were not worth as much as money in the city 
of New York; the difference, together with the trouble of con- 
verting bank bills current in Westchester into funds current in 
New York was at least one per cent; that the Lockwoods would 
make a considerable profit on the loan when they received it, by 

DecL 1867.] Lockwood v. Mitchell. 81 

As diiEBrenoe in ezduDge between New York and Ohio; that 
Oeoige Loekwood assazed ICtcbell that by the laws of Ohio he 
mi^t take what he pleased for the loan and leooTer. Such reasons 
as these, espedallj the last, for taking the bonus of four hundred 
dbUars, only confirm in oar minds the belief that the terms of 
the eontRMst truly state the consideration of the four hundred 
dollars, and throw so much suspicion orer the only plausible 
vBSSon gnren in the answer, to wit, a compensation for looking to 
and changing securities, that we have had no hesitation in com- 
ing to the conclusion that the transaction is tainted with usuxy. 
It would re qui re a clear, distinct, and sufficient consideration 
for the payment of the four hundred dollars to be alleged and 
proved, to oyercome the usurious consideration stated in the 
written oontxact. Instead of this, parts of the considention 
alleged are no consideration at all. No means of determining 
the value of the others are alleged. The trouble and vexation 
of taking the note and mortgage, or drawing his check for the 
eight thousand dollars, might as well have formed a part of the 
consideration as some of those stated by Mitchell. 

8. As to the effect of the loan being usurious. The complain- 
ant has so shaped his bill and prayer for relief that, while he 
claims that the contract was tainted with usury, he does not set 
up the statute of New York for the purpose of avoiding the pay- 
ment of the loan, but simply claims that the excess of interest 
was paid without consideration, and prays that such excess may 
be applied as payment on the interest. 

We perceive no objection to a party thus consenting to do 
equity, and at the same time requiring a credit for the excessive 
interest. No objection to this is made, or can be made, by the 

4. The real difficulty in this case to determine the effect upon 
the rigbts of Qeozge Loekwood, of the family contrsct, decree, 
and sale to James 0. Loekwood, under the mortgage, and the 
conveyance by him to Mitchell. 

At the time that contract was entered into Mit>chell was en- 
joined from further prosecuting his claim, on the ground that it 
was usurious. His hands seem to be tied, and with a fair prospect 
of losing both principal and interest. In this condition of things 
he procured a meeting of the friends of Geoige Loekwood, who 
was then in the asylum, and they entered into the family con 

Two objects seem to have been in view. Mitchell desired to 
avoid the question of usuxy, and to get rid of the pending in- 

ha Dao. VoXm LZX— « 

82 LocKwooD V. Mitchell. [Ohic, 

junction. James 0. Lockwood desired to obtain such a control 
of his father's property as {hat it might be sold to pay debts. Pro- 
eeedings under the mortgage were therefore provided for by- 
James 0. Lockwood, not for the purpose, by sale under a decree, 
to pay the mortgage debt, but to vest the legal title of the mort- 
gaged premises in him. And these proceedings under the 
mortgage were consented to by Mitchell, not for the purpose of 
asserting his lien upon the mortgaged premises, and by decree 
creating a fund for the payment of the debt, for he was not to 
be paid by a sale under the decree, nor was he to enforce his 
lien by an order of sale; his object was to have his debt recog- 
nized, and get rid of the chancery suit in New York. To attain 
these results, it was agreed that the chancery and ejectment suits 
should be discontinued; that the amount of the loan and interest 
be restated; that James C. Lockwood should prosecute to fore- 
close the mortgage made by G^oige and Ralph Lockwood to 
Mitchell and Crawford; that James C. Lockwood should bid off 
the premises, but should pay nothing as purchaser; that liGtchell 
and Crawford, however, should follow a part of the land into 
the hands of James C. Lockwood to secure the mortgage debt, 
the latter holding the premises as trustee for liGtohell and' 
Crawford, and selling and accounting for proceeds of sales and 
of rents to pay the mortgage debt. 

This was a yery ingenious mode on the part of ICtchell of 
defeating the claim of usury set up by George Lockwood, the 
lunatic; and a Teiy ingenious mode on tue part of James C. 
Lockwood to divest his father of the legal title to his real estate. 
In the first place, let us ascertain what effect the family contract 
had upon the decree. 

A decree of foreclosure ordinarily bars the right of the mort- 
gagor to redeem by payment of the mortgage debt; a sale is made 
under the decree to satisfy the mortgage debt; the purchaser at 
such sale takes the title, unincumbered by the mortgage debt, 
and cleared of all claim of the parties to the mortgage. But in 
the case before us, even if we treat the family contract as obli- 
gatory upon G^oxge Lockwood, the decree of foreclosure did noi 
operate to bar the equiiy of redemption, for it is clear that the 
moment James 0. Lockwood purchased and obtained title un- 
der the decree as trustee, to pay the mortgage debt, Geoige 
Lockwood might, notwithstanding the decree, have then ten- 
dered to James C. Lockwood, the trustee, and Mitchell and 
Crawford, the amount of the mortgage debt, and enforced a 
reconveyance of the premises. 

Dec 1857.] LOCKWOOD l\ illTCHELU 83 

Nor ma the sale to James C. Lockwood onder the deoiee 
made for the pnrpoee of satufyiDg the mortgage debt, for James 
O. Lockwood was not to pay anything on his Ud, nor was hia 
bid to be credited upon the decree. Nor was the purchaser to 
take the title nnincombered by the mortgage debt» or cleared of 
the claims of the parties to the mortgage. The debt was to 
stand and follow the premises, notwithstanding the sale. This 
decree, therefore, as a decree of foredosare, was made inopera- 
tiye as snch by the terms of the family contract. That snch a con- 
tract, if entered into by the parties to a decree, or their anthoriced 
agents, wonld be yalid, and that a court of chancery would en- 
force it and make the operation of the decree subordinate to the 
stipulations of the parties, we entertain no doubt. 

The prosecution of the suit on the mortgage, the amount of 
the decree, the decree itself, the sale thereunder, and the rights 
and estate acquired thereby, were inseparable parts of and sub- 
ordinate to the stipulations of the family contract. 

(George Lockwood was not a party to this family contract, 
and no one was authorized to act for him. The family contract 
being unauthorized and Toid as to him, and the decree having 
been procured in consideration of the stipulations of the con- 
tract, and, indeed, forming a part of it, what shall be the opera- 
tion and e£bct of the decreef Not, certainly, as a bar to Oeorge 
Lockwood's right to redeem, for that would be giving it, as we 
Have seen, a more stringent effect than if the family contract 
had been authorized by him, and an effect, too, which Mitchell 
and Crawford did not contemplate. Nor is it necessary, in 
order to protect the rights of Oeorge Lockwood, that the decree, 
or the sale thereunder, should be impeached for fraud or error, 
or that tbe legal title acquired under the decree by James C. 
Lockwood or Mitchell should be pronounced invalid. But we 
cannot, under the facts, do less than hold James C. Lockwood 
and Mitchell to be trustees of the estate of Oeorge Lockwood, 
liable to account to him for sales, and the premises unsold, and 
George Lockwood liable to account to Mitchell and Crawford 
for the real amount of the mortgage debt. By thus holding, 
we recognise the decree as valid and operative as to third per- 
Bons, protect the just rights of Mitchell and Crawford under 
their mortgage, and treat the decree as so inseparably connected 
with the stipulations of the family contract as not, in its opera- 
tion and effect, to conclude the rights of Oeorge Lockwood as 
ifgainst the parties to that contract. 

6. As to the disposition of the usurious interest. One of tbe 


84 LocKwooD V. Mitchell. [Ohio» 

objects which this family contract was intended to effect, and 
did effect, was the dismissal of the suit in New York, brought 
to impeach the mortgage debt for usury. The family con- 
tract being unauthorized and void as to George Lockwood, 
the dismissal of that suit being also unauthorized and to the 
prejudice of the rights of the insane mortgagor — there being in 
fact usury in the transaction — the trustees of the lunatic being 
now required to account to Mitchell and Crawford for the prin- 
cipal and interest, are entitled to at least credit the excess of 
interest beyond the lawful rate as claimed in the bill. 

6. As to the relation of the representatives of Balph Lockwood 
to the surviying partner and to the decree in his favor. George 
Lockwood, as surviving partner of the firm of George and 
Balph Lockwood, was vested with the entire estate and 
control of the property of the firm. The representatives of 
Balph Lockwood had no such distinct interest or authority, 
in selling the debts of the partnership or disposing of its estate, 
as would authorize us to enforce their agreement, to the 
prejudice of the authority or the rights of George Lockwood 
as surviving partner. We cannot separate the unauthorized 
contract of the representatives of Balph Lockwood in relation 
to the debts and estate of the firm and enforce them against 
such representatives, and at the same time vindicate the rights 
and authority of George Lockwood as surviving partner. The 
rights of the representatives of Balph Lockwood must therefore 
be controlled by and foUow the rights of George Lockwood. 
There may be cases in which the rights of a surviving partner 
and of the representatives of a deceased partner may be con- 
cluded by the contracts of the latter; but this is not such a case. 
Here the representatives, as such, were dealing with a contract 
and an estate over which they had no control, and in such a 
manner as directly to impair the rights and affect the authority 
of the surviving partner. 

This case will be referred to a master, to state an account in 
accordance with the views above indicated. 

Babtlbt, 0. J., and Bbdoqebhoff, Soorr, and Sutlopf, JJ., 

Lex Loci Contbaotus €k>VKBNs Constbuctiok of Coktbacts, unless an- 
other place is appointed for their performance : See notes to Kcmoffa v. Taylor, 
ante, p. 62, containing reference to collected cases. So law of state where bill 
of exchange is made will, if parties are silent, fix the rate of interest which 
it is to draw: MeAUiBier v. Smith, 65 Am. Dec 651. Any rate of interest 
aathorized by the Ux loci eonirQ€lm§ or lex loci aoliUioniU will be reoogniaed and 

Dec 1857.] Needles's Ex'r v. Nksdles. 85 

•B fo poe d in tiie eoorta of oih«r gofwrmiieiiti whote Uw« woold 
■aha rach ratea of intoMt uoxioiu: Id. RfmdooM of mory Uvs wa aol 
oonntenuioed, and when ooarto dsteet tfaaniy they wOl withhold may aid to 
tiMHo who make foraigD oontraotB a praienM for ezaotiiig uiury at hooias 
Id. Agreemaiit made in New York to be exeooted thofe mnit be governed 
hj the laws of that state, and if bj those law* the nme woold be niorio— 
Mid void. It will be so held in LoQiaena: Clagmr. OrtdUan,^ Id. dOfK 

Tarn raxMoaaAJL ouun Wihs orasn In ObMneqr t. Daaeon, 28 Ohio Stb IOS» to 
llie point that it ia a settled qnestloa that a jndgment osa be inpsaebed for 

NeedIiEs's Exeoutob t;. Needles. 

(7 Omo Bkaxb, m.] 

SukTOTOBT Pbotisioh AS TO ApYAiicganHTs HAS No Jcrsr Afpuoatiov, 
where the testator distribotes his prop e ity with the intention of dispos- 
ing of it all, bat inadvertently leaves' a rssidnnm by omitting to pot any 
lesidnary clanse in his wilL 

HoiBAVP's AasioHXxzrr or Wnrs's Eivsbsiovabt Ivtxbist onlt Tbaks- 
WEBS to the assignee the right which the hosband liad; and he takes noth- 
ing unless the hnsbaad survive the wife, or the rsveraionsry chose in 
aetion is reduced to possession during coverture. 


Rbmotb PoasiBiLiTT, in whidh there is no erfstJng right that can be the 

subject of relflase. 
SnouTOBT GoHTBAcis Mami vo Cohtbol DisnuBvnoH OF Man's Estatb 

after his death are not binding. 
Advascmxkst to Son, in Fuix of All CSLAmg AOAnm ERatb of the 

lather, will not, after his death, prevent the son taking, as heir, a re- 

sidunm not disposed of by wHL 

PBixnoH for distribution of assets. Philemon Needles had 
eight children, Lncinda, Bebecca, Anna, Bachael, Amy, James, 
Enoch, and John. The first four named were married and had 
received soms amounting to about two thousand dollars each 
from their father, and in accepting such sums had signed an 
instrument acknowledging the receipt, and agreeing not to set 
up any further claim against his estate after his death. These 
receipts were signed by the husbands also. Lucinda and the 
husbands of Bebecca and Anna died. Philemon Needles then 
died. He left a last will and testament, by which he gave cer- 
tain legacies. The will contained no residuary clause. After 
paying the debts and legacies, there remained eight thousand 
dollars in the hands of the executor. The first four heirs above 
named, or their representatives, claimed that this sum should be 
equaUy distributed among the eight. The last four claimed the 
whole, on the ground that the agreement signed by the first 

86 Needles's Ex'r 0. Needles. [Ohio^ 

four Barred them from any further share in the estate. The 
petitioner asked an order directing him aa to his duty in ths 

Swayne-and Baber, for the petitioner. 

John W. AndretMund Henry Slahbery, for the children againal 
whom the releases were set up. 

P. B. WUcox^ for the four children who claimed the whole 

By Court, Babklet, 0. J. The first inquiry suggested bj 
facts of this case is, whether the sereral gifts or donations made 
by Philemon Needles to his four sons-in-law, for which he took 
the several receipts in question, can be treated as advancements 
under the statutory regulation on that subject in this state. 

It was held in the case of Putnam*s Adm'r v. Heirs of Pui^ 
nam, 18 Ohio, 847, that the former laws of this state regulating 
descents and distributions of. personal estates provided for ad- 
vancements as to real, but not as to personal, property. And 
this construction, although stringent and resulting in unjust 
and unequal distribution of estates, was afSrmed by several 
decisions made afterwards. The difficulty was, however, re- 
moved by legislation, and the statute now in force applies the 
rule in relation to advancements to estates, personal as well as 
real: Ohio B. 8. 823, sec. 10. The provision, however, as to 
advancements applies only in case of intestacy. True it is, 
Philemon Needles died intestate as to the residuum of his estate 
now sought to be distributed. But it is apparent from the pro- 
visions of his will that he designed and manifestly supposed 
that he had made a disposition of his whole estate. He made 
bequests to all his children, severally, in various amounts, 
and even anticipated a supposed residuum of three hundred 
dollars in his distribution. The several advancements which 
had been made to his four sons-in-law, for which he had taken 
their said receipts, must have been in his contemplation when 
he made his will. How much he had previously advanced to 
his other children does not appear in this case. But it is fair 
to presume that in view of all his previous advancements he 
made such a distribution of his property by his will as be 
deemed just and proper. In such a case, therefore, although 
the testator had, unexi>ectedly and beyond his own anticipation, 
died intestate as to a residuum of his estate, the statutory pro- 
rision as to advancements could have no jnst application; and 

Dec 1857.] Needles's Ex'b v. Needlbsl 87 

whether it could apply to any case of partial inieatacyy where 
the testator knowingly and designedly made a teatamentaxy dia- 
position of only a part of his propoiy, it is not neoeesaiy to 
consider in this case. 

It is insisted, howerer, that the interest in expectation, or 
hoped for inheritance of the danghters Bachal, Anna, Bebecoa, 
and Lacinda, from their father's estate, was released by their 
sereral hnsbands, by virtae of the instmments of writing exe- 
cuted by them, respectiyely, to the father, whereby each ac- 
knowledged the receipt of the adTancement made, and agreed 
with the father not to set up any further claim against his es- 
tate as one of his heirs after his decease. And this presents the 
question of the power of the husband to release the wife's bare 
possibility or expectation of inheritance from her ancestor. 

One of the daughters, Lucinda, and two of the sons-in-law, 
Dailey and Gray, died before the death of the ancestor, and 
therefore before any actual right or interest could haye Tested 
in the wife by inheritance. The wife of Gteorge Dailey, and the 
wife of Thomas Needles, respectiyely, united with their hus- 
bands in signing the receipts. This, hcwever, cannot affect the 
question, or give any legal vitality to the instruments if they 
had none without it. If the husband had the power to release, 
or by contract to bar, this mere expectancy of the wife, it was 
by yirtne of his right and control oyer his wife's personal estate, 
and not by means of the wife's consenting thereto. It may be 
that in a disposition of, or an arrangement in regard to, a wife's 
property by the husband, made with a view to the wife's sepa- 
rate use or adyantage, the consent of the wife might, in a court 
of equity, be treated as a material element in the transaction; 
but in the release or assignment of the wife's choses in action 
by the husband for his own interest, the wife's uniting with the 
husband in the execution of the contract is a matter of no legal 
consequence whatsoeyer. In regard to the personal esta^ j of 
the wife not held in trust for her separate use, the husband lep- 
resents the wife, exerciaes all her authority; and indeed, in con- 
templation of law, the legal existence of the wife in that re- 
gard is meiged in that of the husband. There is but one mode 
known to our law by which a married woman is authorized to 
join her husband in the execution of a contract, and that has 
reference to real estate, and is done under-certain formalities, 
and guards against marital influence prescribed by statute, not 
attempted to be followed in this case. It was held in Stamper 
V. Barker 9 6 Madd. 167« that the wife could neither be barred of 

88 Needles's Ex'b v. Needles. [Ohio, 

her right by surTiTonhip to her reYeraionaiy intereetB, by her cou- 
sent in court in faTor of her hnsband, nor could she, upon sep- 
aration from her husband, bind herself by deed stipulating that 
he should haTe a certain part of her contingent property when 
it should fall into possession. 

The wife's consent, eyen in court, or her joining her husband 
in an assignment or deed for her reversionaty interests, has 
been held ineffectual as to her right of surriyorship in numer- 
ous cases: Eami^T. Lee, 21Iadd. 16; WooUandsY. Orovocher, 12 
Yes. 174; Pickard t. Boberts, 8 Madd. 884; White t. 8i. Barbe, 1 
Yes. & B. 406. It is by force of the statute in this state that 
the wife's interest in property is affected, at law, by her joining 
in the execution of a conyeyance. 

The inquizy in this case, therefore, inyolyes the question of 
tbe extent of the power of disposal by the husband of the wife's 
contingent interest or mere expectancy. 

It appears to be well settled that the wife's contingent right 
by suryiyorship to her choses in action, immediately reducible 
into possession, may be barred by settlement before or after 
marriage, by actaal reduction into possession, or certain acts 
held to be equiyalent to actual reduction into possession; such as 
the recoyery of a judgment or decree in the sole name of the hus- 
band; the taking of a note or obligation for the debt in the sole 
name of the husband; by an assignment by the husband for a 
yaluable consideration; or by release. It appears to haye been 
held in England, at one time, that an assignment for a yaluable 
consideration of the wife's choses in action, presently reducible 
into possession, would not defeat the right of the wife by sur- 
yiyorship : BumeU y. Kinastan, Freem. Ch. 241. But for a series 
of years past it appears to haye been settled in that country that 
an assignment or release for a yaluable consideration, by the 
husband, of the wife's choses in action, immediately reducible 
into possession, would bar her titie by suryiyorship: Clancy's 
H. & W. 150. But the more recent English equity cases are 
wholly irreconcilable with the former decisions on the subject 
of the power of the husband to defeat, by assignment, the con- 
tingent right of the wife by suryiyorship to her reyersionaiy 
interests, or choses in action not immediately reducible into pos- 
session. In Chandos y. Talbot^ 2 P. Wms. 601, Baie^ y. Dcmdy^ 
2 Atk. 206, and Hawkins y. Obyn, Id. 549, it was held that 
the wife's reyersionaiy or contingent interest, or the possibility 
of a term, or the specific possibility of the wife, may be released 
or assigned by the husband for a yaluable consideration so as to 

Dee. 1857.] Needles's Ex'b v. Needlbl 89 

defeat ber title hj snmTorahip. Bat a different dootijne was held 
to be lawxn HDrrusby t. Lee, 2 Madd. 16, in Purdew t. Jackmm^ 1 
Bnaa. 70, in Bonner t. Minion, 8 Id. 65, and in MUford t. MU- 
ford, 9 Yea. 87. In the last-mentioned case. Sir William Qrant 
disputed the sonndness of the rale that the hasband's assign- 
ment for a Tsloable oonsidenation passed the wife's choses in 
fiction, freed from her contingent right of sorviTorship, apon 
the ground that in snch ease the parchaser would take a greater 
right than the husband had. In Eomtby t. Lee, eupra. Sir 
Thomas Plununer held that the husband's rig:ht to the wife's 
choses in action was dependent on the contingency of his redacing 
them to possession during oorertnre; that a deed assigning a 
rerersionaxy interest is not an actual reduction into possession, 
because it is impossible to reduce a rerersionazy interest into 
possession; and that it could* not be a constructiTe reduction 
into possession, because its onlj effect is to place the assignee 
in the same situation as the assignor; that is, if the husband 
BurviTe the wife, the assignee would retain the property; if, on 
the other hand, the wife surviye, while the interest continues 
rerersionary, she is entitled to the property. 

It is proper to obsenre that our attention is directed to the 
question of the wife's right of surriTorship, and the extent of 
the husband's power of disposal to affect it by assignment ox 
release. We haye nothing to do at present with the question, 
which is of frequent occurrence in chancery cases, touching the 
extent to which the husband, by assignment of the wife's prop- 
erty, may affBct what is termed the wife's equity to a suitable 
provision out of the property for the support of herself and her 
children. That is a subject wholly disconnected with the ques- 
tion now before ub, and presents Tcxy different rules for consid- 

In thecaseof Ptcrddio t. Jackeon, aboTe dted, where the ques- 
tion directly arose as to the power of the husband to bar the wife's 
right by surviTorship to such reyersionaxy interest by an assign- 
ment for a valuable consideration, the authority of the decision 
in Ebrruby t. Lee, tupra, was strenuously denied; and the mas- 
ter of the rolls, in affirming his views expressed in the former 
case, after a patient hearing and searching investigation of the 
whole subject, said: ''The law of marriage gives the wife's 
choses in action to the husband, on condition that he reduce 
them to possession during its continuance; if he die before his 
wife, without having done so, she takes them by survivorship. 
How, then, his honor asks, can he bar her right of survivo*- 

90 Needles's Ex'r v. Needles. [Ohio. 

ship by an act which is not a redaction into possession^ and that 
too at a time when it is impossible, from the nature of the re- 
Tersionaty chose in action, that it should be reduced into pos- 
session? That if it be said that her right may be barred by 
something short of a reduction into possession, namely, an 
assignment for a valuable consideration, we must alter the doc- 
trine laid down in our books. It will no longer be true that 
tlie husband shall not have the chattels personal of the wife 
lying in action unless he reduce them into possession during 
the marriage. 'That the effect of an assignment for a valuable 
consideration operates no otherwise than by putting the assignee 
in the place of the assignor; that the assignor cannot give to 
another a power which he himself does not possess; and that, 
therefore, where the wife has a chose in action, which the hus- 
band himself cannot recover, he' cannot assign over to another 
the right to reduce it into possession. Thai the husband's 
right is merely a right to obtain possession of the subject when 
the period arrives at which the wife is entitled to the possession 
of it; and if he die in the mean time, leaving his wife surviving, 
his right is gone, and the right of the surviving wife takes effect. 
The assignee for valuable consideration must take the right as 
the husband himself had it; he buys the chance of the husband's 
outliving the wife, or of the reversionaxy chose in action fall- 
ing into possession during coverture, and he must wait to sea 
how the event turns out. That in this case the husband had 
died before the chose in action had been reduced into posses- 
aion; the assignee had therefore lost all chance of recovering it, 
snd the wife took it by her right of survivorship/' 

This doctrine was reaffirmed in Morley v. Wright^ 11 Yes. 12, 
jmd also in EUison v. Elirin, 13 Sim. 309* And again, in Hat^ 
tier V. Morion, 3 Buss. 65, Lord Chancellor Lyndhurst fully 
sustained this doctrine, which had been declared by the succes- 
sive masters of the rolls. Lord Alvanley, Sir William Orant, and 
Sir Thomas Plummer, as to the reversionary interest of the wife; 
and in doing so, he took a distinction between a case where the 
husband had the power at the time of the assignment of reduc- 
ing the chose in action, or interest, into immediate possession, 
and where he had not, holding that in the former case the 
assignojent ought, in equity, to be regarded as a construct- 
ive reduction of the property into possession; for as he had 
tlie power of reduction into possession, and the assignment 
amounted to an agreement to do it, equity would regard that as 
done which the party had agreed to do. This doctrine. 

Dec. 1857.] Nsedles's Ex'b v. Needlbbl 91 

Jiowefver, so well supported by authorify and bj reason, and ap- 
paienily reBting on ground incontestible, was strennously, and 
with laborious research, controverted by Chief Justice Gibson 
in the case of Biier and Another, Ouardians of Jordan, 4 Bawle, 
468, wherein he contended that marriage worked not only a 
transfer to ihe husband of the wife's choses in action reduced 
to possession during coTerture, but a transfer of the wife's do- 
minion and power of disposal, so that whaterer interest she 
might haTe assigned, if a feme sole, the husband could assign or 
release for a valuable consideration; and that the distinction be- 
tween Tested and contingent or rerersionaty interests of the wife, 
in respect to the marital dominion and power of transfer over it, 
made in the recent English cases, is without foundation. But 
the extensive and cr^cal reviews of the English cases l^ Chief 
Justice Qibson was not necessary to the decision of his case, 
and could only have been designed to expose a supposed erro- 
neous theory in the English decisions, inasmuch as the authority 
of the case of Siter is to the efiEect only, and can go no further 
than that the assignment of a wife's chose in action, by her first 
husband, to trustees, for the benefit of the wife and children, 
and to place it beyond the power of waste by a subsequent hus- 
band, was meritorious and valid in equify. The views of Chief 
Justice Oibeon on this subject, however, have been adopted in 
subsequent decisions in Pennsylvania, in which they were ap- 
plicable, and reluctantly followed in the recent case of WM>*8 
Appeal, 21 Pa. St. 248, wherein the remark is made in the opin- 
ion of the court: '* However averse to this conclusion some of 
us might be if the question were an open one, we remember 
that our office is jus dicere, and not/tts dare; and we bow to au- 
thoritiee which we are bound to respect." 

This doctrine, however, appears to be peculiar to Pennsyl- 
vania. I have not been able to leam that it has been recognised 
in any well-considered case in either of the other states in this 
country. The case of IkiUle v. Fowler, 22 Conn. 68, goes no f ur^ 
ther than to decide that the husband's assignment of the wife's 
<shose in action capable of immediate reduction into possession 
was substantially such a reduction into possession by the hus- 
band as to defeat the wife's right by survivorship. 

The doctrine of the decisions in England above mentioned 
was recognized as law by the court of errors and appeals in 
Mississippi, in the case of Sale v. Saunders, 24 Miss. 24 [57 Am. 
Dec. 157], and has been followed in numerous other cases in 
tiiis country. 

92 Needles's Ex'b v. Needles. [Ohicv 

And the distinguished law-writer. Mi-. Clancy, in his treatise 
on the rights, duties, and liabilities of husband and wife, sus- 
tains the doctrine of the English decisions in relation to the^ 
wife's right of survivorship in her contingent or reversionarf 
estate, and denies that the power of disposal by the husband^ 
so as to bar the rights of the wife, by an assignment for a valu- 
able consideration, is absolute. The effect of the law upon thi» 
subject would seem to be that the wife's dominion, or power of 
disposal, which the husband, by virtue of the marital relation, 
assumes over the wife's choses in action, consists, not in his 
succession to the wife's right of properly, but the power of con- 
trol and management of her choses in action for the wife's ben- 
efit, together vrith the power of acquiring an absolute right of 
property in the same, so far as they are capable of reduction 
into possession. 

There can be no ground for a distinction between the power 
of tiie husband to bar the wife's contingent right of surviTor- 
ship by assignment and that of doing the same thing by release. 
If the husband could not by assignment transfer to the assignee 
any greater interest than that which belonged to him, he cer- 
tainly could not by release to the releasee. The reason which 
controls in the one case must prevail as to the other. And where 
the husband has not the power of disposal to affect the wife's 
right by survivorship by assignment, he could not affect it by 

This view of the law is decisive of this case. The interests in 
expectancy of the four daughters of Philemon Needles, whose 
husbands executed the instruments in the petition mentioned, 
were not, of course, capable of reduction into possession at the 
time of the execution of the instruments, and were not, by either 
of the husbands, reduced into possession afterwards. And in 
the proceeding now pending, the claim to the inheritance is set 
up in behalf of each of the vriyes, and not of that of either of 
the husbands. 

It has been urged in this case, that where a feme covert has a 
right which, by possibility, may happen during coverture, the 
husband may lelease it, or covenant to release it for value, and 
bona fide^ so as to bind the feme forever. And this raises the 
inquiry whether there vras any right or interest which could 
have been the subject-matter of release at the time of the exe- 
cution of the instruments in question. It has been said that 
' ' where the wife hath any right or duty which by possibility may 
Unppen during covertoze, the husband may, by release, discharge 

Dec 1857.] Needles's Ex*b u Nekdlesl 93 

it:" Shep. Touch. 151. It is inie, as a general thing, thai 
all contingent and execntory interests and contingent estates of 
inheritance, as well as springing and executory uses and possi- 
bilities coupled with an interest, are assignable and releasable. 
But it is also a general rule that a naked or remote possibility 
<annot be released, for tbe reason that a release must be founded 
on a right in being, vested or contingent: 8 Bac. Abr. 280; 
Pdletreau y. Jackson, 11 Wend. 110. Where there is a preseut 
existing right, although to take effect in future, and even then 
only on a contingency, it may be released: Woods t. WUUams, 9 
Johns. 123. But in case of a mere possibility, or a remote pos- 
ability, which is termed in law a possibility on a possibility, 4 
Eenf s Com. 206, there is no right in being which can be the 
eubject of release. 

** The word ' possibility,' " says Smith on Heal and Personal 
Property, " has a general sense, in which it includes eren exec- 
utory interests which are the objects of limitation. But in its 
more specific sense, it is that kind of contingent benefit which 
is neither the object of a limitation, like an executory interest, 
nor is founded in any lost but recoverable seisin, like a right of 
entiy. And what is termed a bare or mere possibility signifies 
nothing more than an expectancy, which is specifically applied 
to a mere hope of successioi^ unfounded in any limitation, pro- 
vision, trust, or legal act whatever; such as the hope which an 
heir, apparent or presumptive, has of succeeding to the ances- 
tor's estate: " Smith on Beal and Personal Property, 192. And 
it appears to be well settled that a contingent interest of a per- 
son unascertained, or a mere possibility as distinguished from a 
•contingent interest in a person who is ascertained, or the mere 
hope or chance of succession of an heir apparent, cannot be re- 
leased: Shep. Touch. 822, 828. 

It is manifest, therefore, that at the time of the execution of 
the instruments in question there was no right or interest in 
being which could have been the subject-matter of release. But 
it is said that although such a release or assignment of the mere 
possibilities or expectancies of heirs apparent is wholly in- 
valid at law, yet that a court of equify will regard it, and give 
effect to it, as a contract to release, when the interest becomes 
vested, and consequently that when the interest does so become 
vested, the claim of the releasee will be enforced, not indeed as a 
trust, but as a right under a contract. Or, in other words, that 
the hope or chance of succession would be barred by esu>ppel. 
It might be a sufficient answer to this to say that no claim is set 

94 Nebdlss's Ex'b v. Needlesl [Ohkv 

up in this proceeding in behalf of either of the husbands to an j- 
interest in his wife's inheritance from her father's estate; and 
that the instmments in question, if regarded in equity as con- 
tracts to be enforced, must be treated as the contract solely oT 
each of the husbands, and as creating no estoppel against the^ 
wife. But for my own part, I feel no hesitation in questioning 
the validity of such a contract. What is the real character of 
the contract before usf Philemon Needles, in his life-time,, 
made certain advancements to four of his daughters, and took 
from the husband of each a receipt for the amount advanced, in 
which the husband acknowledged the same *' to be in full of all 
claims he could have against the estate of said Philemon Needles, 
after his death, as one of his heirs,'' and stipulating for himself 
and his heirs ** not to set up any further claim." Where is the^ 
mutuality, either of consideration or of obligation, for this agree- 
ment ? The advancement was a voluntary act; and whether Phile- 
mon Needles should thereafter give any more of his property to 
these children depended on his own pleasure. He could, by hi» 
will, BO distribute his property ad to wholly deprive them of any^ 
further share in his estate, or he conld, as he actually did subse- 
quently choose to do, in the distribution of his properly by will, 
give them a further share in his estate. The stipulation only con- 
ceded to Philemon Needles that whioh was an inherent l^ga^ 
right of his own in the disposition of his own property. The 
real nature of the contract was such as to impose no binding 
legal obligation. If Philemon Needles chose afterwards to make- 
further donations to these children, this contract could not pre- 
vent their accepting it; and if he was disposed to give all the 
residue of his properiy to others, he had the legal right and full 
power so to do without any snbh agreement. 

But aside from these considerations, there is an insuperable- 
obstacle in the way of giving effect to such a contract. The law» 
of the state have provided the mode for the distribution of a> 
man's properiy after his decease. All dominion of the owner 
over it ceases vrith his life; and it must be distributed according^ 
to the bequests of his will, if he has chosen to make a testamen- 
tary disposition of it, and if not, then according to the law of 
descent and distribution. The owner is always allowed to pro- 
vide by will for the division and distribution of his property after 
his decease. And the law has provided regulations, so far as the^ 
distribution of the estates of intestates can be affected by pre- 
vious advancements to children. A man cannot provide for the 
division which shall be made of bis property after his death, hf 

Dea 1857.] NxKDLEs's EtR u Nxedlsbl 36 

exeeotoiy contneiB irith his chfldxen, instead of hsi will and 
testament. And to allow an inteaiate to control tha oomne of 
descent and distribation by mere exeentoiy oontnota with his 
children, dnzing^ his life, would be to allow him to set aside 
the laws of the state. The properiy of a deceased person must 
pass by devise or descent. And the operation of the laws of the 
land in this respect cannot be defeated by an j kind of ezecatoiy 
contracts, made for the purpose of controlling or affecting the 
distribntion of a man's properly after his death. This opinion 
b in accordanoe with the views expressed by this oomt» in the 
case of Crane t. Dofy, 1 Ohio St. 279. 

We have been referred to the case of JFIrestoite v. FiteaUme^ 2 
Ohio Si. 415, as an aufhoriiy to sostain the validity of such a 
eontiact. Although some of the reasoning of the opinion in that 
case wonld seem to favor snch a contract, yet the effisct of that 
case is certainly not in favor of the enforcement of such an ez- 
ecntoiy contract, inasmuch as the dedsion is expressly placed 
upon the ground that the contract, had been fully and specifi- 
caUy executed by an abandonment on the part of the son of all 
claim on the estate, after the death of the &ther. 

The case of Ives v. Metod^, 1 Atk. 63, is relied on as sus- 
taining such a contract. That case is as follows: A and his 
wife covenanted in articles before marriage, in consideration of 
two thousand pounds, the wife's portion, to release all the right 
that might accrue to them out of her father's personal estate, by 
the custom of London. The lord chancellor, in sustaining 
this contract, says: '* It is highly reasonable that such kind of 
articles should be carried into execution, and that when a father 
is bountif nl to his children in his life-time, that he should have 
his aflGairs settled to his own satisfaction." This reason would 
be wholly futile under the laws of Ohio, for a man can have his 
aSjEiirs settled to his own satisfaction hero by making his will, 
without relying upon any such executory contract. But the 
lord chancellor adds: " I found my opinion, too, on an old law 
well known in this city by the name of Jnd's law, wheroby a 
hnsband was authorized to agree with the father for the wife, 
though she was under age." Thero aro numerous other cases 
bearing some analogy to this decided on the peculiar custom of 
London, and therefore entitled to no weight in the case beforo 


In the case of Morris v. Burroughs^ 1 Atk. 898, the lord. chan- 
cellor refused to enforce a somewhat similar contract, saying 
that agreements of this kind ought not to receive encourage* 

96 Needles's Ex'r v. Needlb& [Ohio, 

meni. Other decisions in England, however, have been refened 
to, whioh go far to sustain such agreements. 

The case of Quarles v. Quarlea, 4 Mass. 680, to which reference 
has been made, turned on the question of an adyancement under 
the statute of Massachusetts, and is therefore not an authority 
against the conclusion expressed in this case. 

Reference has been made to a class of cases where one of the 
heirs presumptiye has purchased and paid a valuable considera- 
tion for the expectancy of another of the heirs in the ancestor's 
estate; and where two of the children have contracted with each 
other to divide equally whatever may come to them from an 
ancestor by devise or descent, in which such contracts have been 
sustained. Such is the effect of several of the cases, English 
and American, referred to by counsel in this case: IVuU t. 
Eastman, 3 Met. 121 [37 Am. Dec. 126]; Fitch v. FUch, 8 Pick. 
480; Beckley v. Newland, 2 P. Wms. 182. These cases, how- 
ever, turn upon a wholly different principle from that of the 
case before us, and bear no analogy whatever to it. Where two 
of the children contract with each other in regard to their ex- 
pectancy from their ancestor, they stand upon equal footing, 
and although such contract cannot operate by way of assign- 
ment or release, yet where a valuable consideration has been 
paid, it may operate by way of estoppel, or be enforced in eqnily . 

But in no view which I can take of such an executory con- 
tract between the ancestor and the heir expectant can it be sus- 
tained on any clear and satisfactory ground. 

Ordered that an equal distribution be made among all the 
heirs at law of Philemon Needles, deceased, of the residuum of 
his estate undisposed of by vnll. 

Bannu&BHOFF, Bowsh, and Soott, JJ., concurred. 
Swan, J., having been counsel, did not sit. 

Rxuuss BY Hbib Appaubnt or ms Estati in Bxpbotanct, with a 
eoveuuit of non-claim, made fairly and with oonaentof hiaanoettor, predndai 
the releaaor from afterward aetting up a chdm to any part of hia anceator'a 
satate, either aa heir or devisee: Cfurtis v, Ourti$t 63 Am. Dec 651, and caaea 
dted in note to same 654. 

Mbbx Possibiutt n not Assionablb, Aooorddio to MMaU v. ^tnn, 61 
Am. Dec. 414; but the general rule aeema to be that equity will uphold 
aaaignments, not only of choses in action, but of contingent intoreata and 
ezpectandea, and things having no present actual exiatenoe, but resting in 
possibility, if fairly made and not against public policy, and agreementa for 
auch interests will take effect as assignments, when the subjeots aBBign<d 
have ceased to rest in possibility and have ripened into realltji Sea f%M v. 
Mityar tie. qf New Ti^k, 57 Id. 435, and note 440. 

Dee. 18S7.] Nsedlbs's Ex'b v. NcKDLBaL 97 

Qi AiiKHiiJuiiiB 10 Mamm TAxnooh/OL DnpoBRnw 09 PftopnTf bt 
WaL,w9b J ok mmm ▼. HvJtMk 66 Am. Deo. 773, and exfeflDded not* to mmm 
784-790^ djMoniqg the mbjaet 

Thx psnraiPAi. oaoi was ooimimD npon in Mwrpkif ▼. Mnrpkff^ IS 
OhioSt 416. In the letter eaM it was hdd to be a settled rule that whet ie 
tenned ettfaer a naked pQerihility, or a remote poeubilityt eeanot be releeeed, 
for the reaeon that a releaee mnet be founded on a right in being, either Teete«l 
or contingent. And, aaid the court In the latter caee, nnder thie rule it hai 
gBneraDy been held, while a preaent existing right may be releaeed, aithoogk 
eoch ri^t ia not \p take effect nntil in fatore, yet a mere poeability, or a 
reoMte paeaihility, iriuoh the law terme a poeubility npon a poeubility, can- 
■ot be relenaed, itnot being regvded * right in being which can be the aubjeot 
of releaee; for it ia only eneh a right aa the hope which an heir apparent hae 
of i wioceedin g to the estate of Ids ancestor. And said the oonrt in the latter 
cam, nndsr the applioatian of this dootrine to the principal oaee, the ooort 
held a reoeipt in writin|^ and an agreement daly signed and sealed by the 
heir, exaented and delivered to him in the life-time of the intestate, aeknowl- 
edging the receipt of two thoosand dollars in foil of all claims against the 
ertate of the person so paying the same, after his death, as one of the heirs, 
■ad thereby binding himself and his heirs to eet np no farther claim, did not 
prednde snoh heir from ■ssertiiig Ids daim as such heir to hb distribative 
•here of eodi estate. The right eo sasnmed to be released was held to be a 
mexe poesibility, and not the sabject-matter of a release, at the time of exe- 
eating said reoeipt. It was also suggested, in the opinion pronounced in the 
principal caae, aa an insnperable objection to the giving effect to such a con- 
trset. that the laws of the state had proTided the mode for the distribntioo of 
a man's prup e rly after Ids decease. In the principal case the heir waa entitled 
to a csrtain part of the eetate by the statute law of the state. In Mwrpkif v. 
Swrpnf, wuprOf tne widow waa held entitled to a certain part of the eetate 
by the statute law of the state. In each oaee the contrsot wae made with the 
intestate; and said the court in Murphy ▼• Murpkg^ mspra, what ii said of want 
of mutuality of oontract in the principal ease might, with equal propriety, be 
eaid in the othercase. In Bant ▼. ITtdb; 14 Id. 606, the principal oaee wae 
cited to the following propoeitions: The intention of the teetator has no 
efficacy, and can be regaJrded only so far as it ii apparent in the dispositions 
made by his wilL If he has left property undisposed of, its disposition is 
oot goTcraed by his will, but by another rule, having its origin in anothei 
source^ in the application of which the intent of the testator can have no in- 
fluence. TUs rule operatee in the same manner aa if the deoeased had left 
BO other property, and made no wilL As to the derised property, be is a 
a testator; as to that not disposed of, an intestate. In DiUoe^$ AdmW v. 
CboMy'f As'n^ 22 Id. 441, it waa held that the partial disposition of an estote 
by will doee not exdude the operation of the statute regulating advancements, 
io the distribution of the inteetate residuum; and that a gift to a son-in-law, 
intended by tlie anoestor to be charged aa an ad vanoement against his daughter, 
sod not aobssquently converted l»y him into a gift abeolnte, will be so charged 
sgunst her in the distribution of his intestate property, if she, knowing the 
fact and intention of the gift shall have aoqoieeced therein; but the princpal 
case waa therein dted to ahow that gif te to aons-in-law, supposed to have 
been originally intended by the anoeetor as advancements to his daughters, 
were held otherwise, on its plainly appearing that in making a aubeeqnent 
partial disposition of his estate by will he had treated them as, and there- 
fore converted them into, unqualified gifta. At the date of the deed men* 
Am. Dbo. Voi^ LXZ— 7 

98 Evans v. Statk lOhio, 

Uoned in Hari t. Cfreffg^ 32 Id. 511, the grantor had no interest in the Unci 
that could be assigned or released; and the ooart in that case said: '*No one 
is an heir to the living. Dnring the father's life, ail that the son had was a 
mere naked possibility, not oonpled with an interest, wliioh coold not be re- 
leased, assigned, or devised. Neither would it descend to his heirs. It oould 
only be eztingaiihed by estoppeL" To this the principal case was cited. 
In Romnlhal v. Mayhugh, 33 Id. 163, it was held that a /erne sole, having 
capacity to contract, coald bind herself by her representations and covenants 
so far as to estop her in equity from repudiating a oontraot fully executed in 
good faith by her grantee, and as she supposed and intended at the tiir»e. 
fully executed on her part. The principal case was relied on to support au 
opposite conclusion; but the court said: " That case, so far as it bears on 
this, merely holds that, at common law, the mere expectancy or chance of 
succeeding to an estate is not the subject of release or assignment, but, as the 
opinion shows, may be upheld in equity; and that a married woman must 
join her husband, as provided by the statute, to bind her real estate, but it 
is also expressly held that in equity it is a different qnestlcn." 


[8 Ohio Btati, 196.] 

BrrhK ow Inbtbumxkt alons does not Detebmikk its Lioal Cbaractkb. 
A forged instrument in the following form, save the mere spelling, wiU be 
regarded as a statutory "order" for the payment of money, and not as a 
mere request: " Wen 19th. Mr. Davis pleas let the boy have 96,00 dolen 
for me. B. W. EarL'* 

iNDiomoNT for forgeiy. The first count of the indictment 
charged plaintiff with forging " a certain order for the payment 
of money." It then set out a copy of the order in the form given 
in the syllabus supra. A conviction was had under this count. 
It appeared from the bill of exceptions that the state, after hav- 
ing laid the proper foundation, offered in evidence the instru- 
ment alleged to be forged, and which in all respects, save the 
mere spelling, corresponded with that set out in the first count. 
Defendant objected, on the ground of variance between it and 
the paper described in the indictment. The objection was over- 
ruled, and the paper allowed to go to the jury. The plaintiff, 
however, in the appellate court, abandoned the question of van* 
ance, and urged tiie single point that the instrument in question 
was not an " order" for the payment of money, as named in the 
^t count, but only a ** request.** 

R, 8, Moodey^ for the plaintiff in error. 

(7. P. TFoIoott, aUomey-^eneral^ for the state. 

Dec 1857.] Evans v. Statk. 99 

By Court, Soovr, J. If we look simply to the tenoe of tlie 
fiJse instrument set out in the indietmcmt in this esse, a de- 
cision either way of the question presented might be sustained 
hj a copious reference to authorities. 

The leading English oases would decide the question in fsTor 
of the plaintiff in error. Perhaps the instincts of humanity 
had their influence in those decisions; for under their statute, 
then in force, the question became one of life or death to the 
pxisoner. Under the more humane criminal codes of an ad- 
vancing civilization, the courts of this country haTC generally 
held a different doctrine. 

It is by no means surprising that this conflict of authorities 
should be found in relation to instruments similar in their terms. 
The language employed may be such that the legal character of 
the instrument would depend upon the relations subsisting be- 
tween the parties, and the circumstances of the case. These 
circumstances may haye been such in the present case as, had 
the paper been genuine, would haTC giTcn Earl, the drawer, a 
right to expect and require the compliance of Davis with its 
terms. He may, for instance, haye had funds in the hands of 
Davis, subject to his own order; and in such case, the instru- 
ment in question would naturally be regarded and treated by 
the parties as an " order,'* and would both in fact and in law 
be such, notwithstanding the dvilily and courtesy of the terms 
in which it is couched. The sfyle alone cannot determine the 
legal character of the instrument, for a rude request may be 
more mandatory in its form than a courteous order. 

In this case there was no special finding of the facts by the 
jury, and the bill of exceptions does not purport to contain a 
statement of all the evidence, but seems to proceed on the idea 
that this instmmeDt, from its very terms, could not under any 
circumstances be regarded as a statutory " order" for the pay- 
ment of money. We think otherwise. 

Judgment affirmed. 

Babtlbt, O. J., and Swan, BBDnxRHorr, and Bowbm, JJ., con- 

100 HoLLisTEB V. Judges of District Coubt. [Ohicv 


CouBT OP LuoAS County. 

[8 Ohio Btatb, 901.] 

Btert Court of Rboord has Supertisort akd PBoraonHO Cbaboi 

OTKR ITS Records and the papers belonging to its files. 
BvxRT Court has Power to Direct Clerk, not only to Cobbbot 

Clerical Brbors, but to order its records and files to be restored to 

their original condition, where they have been fraudulently or otherwise 

improperly altered or defaced. 
EvBRT Court has Power to Order Substitution or Pafxbs in case the 

originals are purloined or lost. In making corrections, etc., the clerk is 

under the control and authority of the oonrt. 
Personal Knowledge of Judge is not Essential to Cobsxction or 

Clerical Error. The court may hear evidence and act on the proof. 
Judges or Court or Common Pleas in Ohio are Judges or Dibthiot 

Court, under the constitution and laws of that state, and as such are 

empowered to exercise its authority. 
Objection that Writ or Mandamus is Dibbotbd to Persons as Judgbb 

of the district court, instead of to the district court, is untenable. 
Writ or Mandamus Directed to Subordinate Judicial Tribunal is 

Properly Directed to the judge or judges of such court, especially 

where there may be other judges authorised to hold or participate in 

holding the court, as authority is exercised over the judges personally in 

case of disobedience. 

Mandamus. Motion for a peremptory writ. An altematiTe 
writ of mandamus had been issued out of the supreme oourt at 
the instance of Hollister and Smith. It was directed to the 
judges of the district court of Lucas countyi and commanded 
them to cause an order to be made, or show cause why they 
should refuse so to do, directing the clerk of said district court 
to correct the record in a certain action which had been tried at 
the April term, 1855, of said court. In said action, Hollister 
and Smith were defendants, and John P. Beznor was plaintiff. 
The correction prayed for was that there should be restored to 
the bill of exceptions, signed, sealed, and filed in said case as a 
part of the record thereof, certain material words which, as was 
alleged, the judge of the court of common pleas, who presided 
at said term of the district court, had improperly stricken out 
of the bill of exceptions, outside of the court-room, after the 
final adjournment of the court, without personal consultation 
with either of the judges of said court, and without the knowl- 
edge or consent of Hollister or Smith, or their attorneys. And 
this alteration, it was alleged, was not the act of the district 
court. One of the judges of the court of common pleas, and 
who was one of the judges composing the district court at the 

De& 1857.] HoLLisTEB v. Judges op District Court. 101 

time the said bill of exceptions was signed, made a letnm to 
the alternative Tnit> and the objections made to the correction 
of the alte^tion in the bill of exceptions appear in the opinion. 

WaUe and Murray , for the relators. 

By Court, Babtlbt, 0. J. The objections made to the coireo- 
tion of the alteration in the bill of exceptions, on behalf of the 
defendants, appear to be the following: 1. That two of the 
judges know nothing about the facts; 2, That they have no 
authority over the clerk in the premises, and can make no order 
that be is bound to obey; 8. That they are judges of the court 
of common pleas, and only as such authorized to hold a district 
court; 4. That the altematiye writ was directed to them as 
judges of the district court, and not to the district courL 

Eyeiy court of record has a supervisory and prot3ctii33 charge 
over its records and the pepese ^jelongifig td'itsiios^'and may 
at any time direct the CGRect20i> ol clerieul errors, or the substi- 
tution of paperc m case the originals are purloined or lost; and 
in the exercise of the same authority in case the records or files 
should be fraudulentiy or otherwise improperly altered or de- 
faced, may direct their correction and restoration to their origi- 
nal condition. And in making such corrections, the clerk is 
under the control and authority of the court. 

Two of the judges, it is said, have no knowledge of the facts 
touching the alleged alteration of the bill of exceptions. This 
is no legal excuse for not doing the act directed, when they have 
the unquestionable authority to direct the relators and other 
parties interested to produce their proofs in relation to the mat- 
ter. The personal knowledge of the judge is not essential to 
the correction of a clerical error. He may inquire into the 
matter, and inform himself by competent evidence, and act upon 
that, as he acts upon proof given in court in the performance of 
other judicial acts. 

It is objected that the defendants are judges of the court of 
oommon pleas, and only as such authorized to hold a district 
oourt. It matters not in what form of expression the judicial 
power is conferred. The defendants are, by the constitution 
and laws of the state, constituted judges of the district court, 
and as such clothed with full authority to hold the district court, 
and exercise its jurisdiction and authority. And their authority 
to exercise chamber powers in vacation, touching causes pending 
in the district court, by allowing and dissolving injunctions, and 
performing other acts as judges of the district oourt, cannot be 

102 HoLUSTXB V. Judges of District Court. [Ohia 

oontroTerted. And the fact that they are judges of the oommon 
pleas does not. under the constitution and laws of this state, ren- 
der them inoompetent to act as judges of the district court. 

There is nothing in the objection that the writ is directed to 
them as the judges of the district court instead of the district 
court. The writ was properly directed. They are the judges of 
that court, and as such clothed by the constitution and hiws of 
the state with power to hold that court and exercise its authority. 

A writ of mandamus to a subordinate judicial tribunal is prop- 
erly directed to the judge or judges of the court, and especially 
where there may be other judges authorized to hold, or partici- 
pate in holding, the court. In case of disobedience to the 
mandate of the supexrisoiy court, the authority to compel 
obedience is exercised over the judges personally, having the 
power ip. exercise the functions of the court 

Pereiiipteijr ^ntlamtMK awarded. 

BBiNKBBHonp' ab&* *dbo#r, ii.j 'eooipurred.* * ' ; ' - ' 
Swan, J., dissented. 

Power of Ck>UKrB to Ordkr Gobbiotion and AMUfDiOHT of TBsm 
Bboordb: See Sweeny v. Ddany, 44 Am. Deo. 136, and note; notes to J<mm 
V. Leuns, 47 Id. 340; Lewis ▼. Rose, 50 Id. 49; WhUwell v. JSmary, Id. 220. 

Parol £vii>bnob or Lost Judicial Reoobd: Lyon ▼. BoUmg^ 48 Am. Dea 
122, and note 129; Sakin ▼. Vance^ Id. 770, and note 771. 

Tux PRINCIPAL OASi WAB ciTKO in Vou BtuHrk ▼. CUy qf Newark, 26 Ohie 
Bt. 39, to the point that under the judicial system of Ohio the judges of the 
oourt of common pleas are judges of the disteiot court. 






GoiofONWHAiiiH EX BEL. Attobnet-Genebal t;. 


[28 PsnnTx.TA]aA Statb, 9.] 

RiouLABiTY AND Leoalitt of municipal election and of the retnms made 

thereof must be followed as provided, to the exelonon of the oommon-Uw 

mode of redress. 
Judgment or Pabticulab Ck>UBT on Mebitb, whxbb Madb Final by 

Statcttk, cannot be drawn in question in another court in a proceeding 

different from the statutory mode. 
8tatb is Bound by Statutes Madb to Pbbtbnt ToBinoim U8Vbpatiob» 

and to regulate and preserve the right of all eleotioiia. 

Wbtt of quo warranto issued oat of the sapreme oonrt on the 
suggestion of the attorney-general against William Gkurigues, 
to show bj what claim and authoritj he exercises the office of 
alderman. The basis of the relator's claim is that one Wynkoop, 
who, howcTer, was not joined as a party, at the said election 
for alderman, received eight votes more than did Garrigues, and 
was therefore legally elected and entitled to the office. The 
temaining facts appear in the opinion. 

R, N. WaUe, for the commonwealth. 

J. B. Tbumsend, for the defendant. 

By C!otirt, Lbwis, 0. J. The act of the second of February, 
1854, provides that the returns of all municipal elections (with 
exceptions not material to the present case) '' shall be subject 
to the inquiry and determination of the court of common pleas 
of the county of Philadelphia, upon the complaint of fifteen 


104 Commonwealth v, Oabrigubs. [Pemu 

or more of the qualified Toiers of the proper ward or diTiBion^ 
which complaint shall be filed in the said court within twentj 
dajB after such eleotion/' etc., and ** the said court in judging^ 
of such elections shall proceed upon the merits thereof, and de- 
termine finally concerning the same, according to the laws of 
the commonwealth." If the election of William Oarrignes had 
been contested in the manner thus prescribed, the judgment of 
the court of common pleas would hare been final. It would not 
have been reversed by quo vmrranio^ or by any other col- 
lateral proceeding. Even a oertiiorQri would only draw into re- 
view in this court the r^gnlariiy of the proceedings, without 
reaching the merits of the case as disclosed in the evidence. 
On the merits, the judgment of the common pleas, by the terms 
of the act of 1854, is final and irreversible. In addition to the 
provisions of the statute to this effect, the principle of the com- 
mon law produces the same result. It is the interest of the public 
that there should be an end to contention. Justice to the parties 
requires that no one should be twice vexed for the same cause. 
For these reasons, the general rule of the common law has been 
established, that no judgment of a court of competent juris- 
diction can be re-examined in a collateral proceeding. U the 
election had been contested in the manner prescribed by the 
statute, the decree of the common pleas could not have been re- 
examined in this form of action. Can the commonwealth gain 
any advantage by disregarding the requirements of the statute? 
The act of 1806 furnishes an answer to this question. The 
remedy prescribed by the statute must be pursued. 

But it is argued that the commonwealth is not bound by the 
statute. It is true that the general rule in England is that the 
king is not bound by a statute if he be not named in it. But this 
rule has many exceptions. All statutes made to suppress wrong, 
to take away fraud, to prevent the decay of religion, to prevent 
tortious usurpations, or to eecure to electors the right to make 
free election, are excepted out of this rule in England, and bind 
the king although he be not named: 6 Co. 14 b; Dwarris on 
Stats. 27, 28. The act of 1864 comes within the spirit of 
several of these exceptions. In addition to this, the subject- 
matter, being one in which the commonwealth is the chief party 
in interest, plainly indicates an intention to bind the state. If 
this were not the construction, the statute would be almost in- 
operative. It is therefore our opinion that the remedy pre- 
scribed by the act of 1854 excludes all other remedies for mat- 
ters which might have been investigated in the form pieiKsribed 

1857.] Pbigs u Tatlob. 105 

bythaiaeL It is not xieoeeauy to detenoine how fiur ihia sUt- 
atebindBHenxyWynkoop. He is not a party to tliis euit. Ha 
has caxefnlly aroided heooming the relator, or in any nay mak- 
ing himself liaUe for costs. 

The thirteenth section of the act of the thirteenth of April, 
184D, applies to nrits of ijpto yacarwnio brought hj indiTiduals, 
in which the controversy is " between persons cTaiming to bo 
duly elected." It does not therefore apply to this case. If ii 
did, it is repealed by the act of 1864, so far as the former is re- 
pugnant to the provisions of the act last mentioned. 

It follows that the defendant is entitled to judgment on the 

Judgment for the defendant; and it is osdered that the county 
of Philadelphia pay the costs. 

RsmDm OUT or OouBSB or CoiiMov Law Wboob ABB CbfBT Br ScAson 
mnst be pozsiMd to the letter: JREeeKm CoMf, dS F^ St. 41, 4iim% the pris- 


Fbioe v. Taylor. 


Law op Bbtatsb-tail Ddoobbbd. 

Brati8-«ail ass LroLUDKD nr Pxhiistltahia Ihthzaxb Aoc of April 8, 
1833, regolating the deeocnti of real estate^ and deecend to tbo hcin 
generelly, and not to the eldeat aon. 

Uvma Buui or LiTMarasi'Aaioy TEta Fatobs Hbie nr DouBmn. CAasi, 
FtanaylYaitla ooorta indina hi faTor of eetata-tail whera it daaoende to 
all the ohildreB aqoally, as aooh oouite would be in ezaet aooordonoe 
with the Pennaylvania lawi of lineal deaoent. 

Pdbvosb or P ssBS i L TASiA Acc or Afbil 27, 1856, ia to oooTert woida of 
entailment in eitatea thenofter eraated into worda of general inheritance 
in fee, and thereby repeala the atatnte d^ <loi»ie tiomdUkmaiibiuM, 

Wni. DOBB sor Taxb Bmor mnen. Tbratob'^ Death, and therefore, if 
a will ia w ritte n and eKecntod before the paaeaga of a law, but the testo- 
tor doea not die till after the enaotment of the law, the will is ci catod 
after the paaeaga of the law, and mnat be governed by it 

■raxs-«ail GsrasAL d Cbsaxkd nr a. B. T., Y^mnsEm^ under tiie fol- 
lowing proviaioo in will, if oonaideced independently of the Pennsyl^Auia 
act of 1805^ Tii.t '*I give and lieqneath all my oertein land .... to 
my granddanghter, A. B. T., for and during her life, prorided ahe ahail 
not leave iarae at her death; bat if she ehall leave lawfol iaeoe at her 
deoeaee, then it ia my will that my plantetion ehall go in fee-eimple to 
her heiia forever. In oaae ahe ahall not leave iaane at her death, I give 
and deviae my aaid plantetion to the ohildren of my airter, R. B.; it to be 
iold and the prooeede divided between them, efaare and ahare alike; and 

106 Price v. Taylor [Penn. 

if any of my nud nieotv or nephews, the children of my said eister R.» 
should be deoeaaed, leaving children, their shares respectively to go to said 
children.*' The fact that the devise over is on an indefinite failare of 
issue will not prevent the devise from creating an estate-tail; and the 
limitation to the issue in fee-simple goes for nothing, as being inconsistent 
with the lineal descent with which the estate starts. 

BsrATC-TAiL HAS BUT Onk Litb's DURATION if the donee dies without 
leaving issue at his death, but it is not shortened by the fact of there 
being a limitation over on that condition. 

Fmm is Converted by Impuoation into Entail by limitation over on 
indefinite failure of issue; but if, instead, the limitation over be on de- 
fault of issue at death of the first taker, no such implication arises, and 
the limitation over merely reduces the fee to a conditional one. 

Dkbt. The plaintiffs, Biohard B. Taylor and his wife, Ann 
B. Taylor, had agreed to convey to defendant the certain prop- 
erty mentioned in the devise following, and in pursuance of the 
agreement tendered a deed in due form, demanding the purchase 
price. This amicable action was then brought for the purchase 
price, so as to determine the title to the property and what estate 
had passed to the plaintiffs under the devise, which was in the 
following words: '' I give and bequeath all my messuage, plan- 
tation, or tract of land, situate in the township of Pennsbury, 
to my granddaughter, Ann B. Taylor, for and during her life, 
provided she shall not leave issue at her death; but if she shall 
leave lawful issue at her decease, then it is my will that my 
plantation shall go in fee-simple to her heirs forever. In case 
my said granddaughter, Ann B. Taylor, should not leave issue 
at her death, I give and devise my said plantation to the chil- 
dren of my sister, Rebecca Baker; it is to be sold, and the pro- 
ceeds divided between them, share and share alike; and if any 
of my said nieces or nephews, the children of my said sister 
Bebecca, should be deceased, leaving children, their shares 
respectively to go to said children." The said Bichard B. Tay- 
lor and wife have one child living. The remaining facts are 
stated in the opinion. 

Fuihey, for the plaintiff in error. 
Darlington^ for the defendant in error. 

By Court, Lowbib, J. All social progress implies some 
changes in customs and institutions, and these always involve 
some degree of confusion. 

Social development is a continual changing of the spirit of 
the social system, and if it is not closely observed, and intelli- 
gently followed by correspondiupr and harmonious forms and 

1857.] Pbice V, Taylor. . 107 

ioatiiniioiiB, sociefy finds itself embanassed by the conflicting 
elements of an inconsistent system. Very commonly, forms 
and institatioiis remain unchanged, at least nominally, until 
long after the princq>les which they were intended to express 
and enforce have been essentially altered. And Tery commonly 
the old system is altered and amended, either by custom or by 
legislation, in its most prominent parts, without any adequate 
attempt being made to adapt the alterations to the Aiinor por* 
tions of the system which are properly related to them; and in 
this way the system becomes seriously complicated in some of 
its parts. In no parts of our legal qrstem do we meet with 
greater confusion of ideas, manifested in practice, than that 
which exists in relation to future and contingent estates and 
to estates-tail; and it is noticed by every writer who treats of 
these estates. 

It is natural to expect greater confusion of thought on this 
subject here than in England, because of the old and compli- 
cated principles being applied here to widely different systems 
of real estates. In no work has it been so well presented as in 
Mr. Smith's treatise on executory interests, which contains a 
Tezy thorough, flystematic, and accurate view of the whole sub- 
ject, in its English aspect, and ought to be referred to in the 
study of all its different questions. 

Yeiy naturally, the rule in Shdtetfs Oa»e has shared in these 
embarrassments. Its application becomes quite complicated 
with us, because of its having been at first accepted in its Eng- 
lish form, and not in its principle; and thus it became an in- 
congruous element in our differing system of descents. It was a 
logical consequence under the English law of inheritances that 
an estate-tail general should descend to the eldest son. But 
with us it would, in logical consequence from our law of de- 
scents, have passed to all lineal descendants, according to our 
law of equalily among children. Not being thus treated, it 
necessarily becomes an element of disorder and confusion. 
Along with devises and conveyances to a person and his heirs 
generally, or his lineal heirs in the male or female line, this 
special kind of estates and assurances was fully confirmed by 
the statute de doms condiiianaHbiiB. 

If the grant was to a man and his heirs generally, it descended 
to his lineal and collateral heirs according to the laws of inheri- 
tance jrenerally. If to a man and his lineal heirs, general or 
spocial, it descended in the general or special line indicated; 
those who were to take under it being ascertained by the rules 

108 . Peicb v. Taylor. [Pena. 

of lineal descenlB. It wns to these institaiions that the rule in 
Slvelley's Com was applied; and it is yeiy simple and Teiy jnsfc 
in its principle, however difficult it may sometimes be in it» 

In its principle, it is vexy like to the role of the statute <rf 
uses and of our equity, that disregards the mexe form of a title 
to land, and even some of its minor incidents, and treats it aa 
being reallj his to whom it substantiallj belongs, though the 
form and intention be otherwise. That we may discuss the role 
in Shelley's Case with sufficient clearness for the present case, 
and for general purposes, and obtain a perfectlj distinct com- 
prehension of the idea which it expresses, we may present it in 
its simplest form; and as it most frequently refers to devises,, 
we shall speak only of this kind of conveyance. And as the 
rule has a double aspect, we may divide it into two. Then the 
first one may be thus expressed: a devise to one for life, with 
remainder to his heirs, creates a fee-simple. The law so treats 
it, because it is substantially so, and sets aside the apparent 
intention to make two estates out of it. And the second one 
may be thus expressed: a devise to one for life, with remainder 
to the heirs general or special of his body, creates a fee-tail, 
general or special. It is substantially a fee-tail, and so the law 
treats it, notwithstanding the form in which the devise is ex- 
pressed: Smith on Executory Interests, sees. 423, 453, 479; 
Williams on Beal Prop. 192-196. 

The words '* heirs" and " heirs of the body," most frequently 
express the relation in which the second takers must stand to the 
first, in order to come within the rule. But the presence or 
absence of these words is not conclusive either way, for any 
other words, such as **next of kin," '*sons," ** daughters,** 
'* issue," *' children," ** descendants," will answer quite as well, 
if they appear to be equivalent; and the most appropriate words 
will not answer, if used in a special and inappropriate sense. 

Any form of words sufficient to show that the remainder is to 
go to those whom the law points out as the general or lineal 
heirs of the first taker will be sufficient, unless it be perfectly 
clear that such heirs are selected on their own account, and not 
simply as heirs of the first taker: 1 Bro. 0. 0. 219. 

These propositions combined express the one principle of 
law, that a devise to one for life, with remainder to his heirs, 
general or lineal (in substance, even though not in form), such 
heirs shall be ascertained by the laws of inheritance, general o/ 
lineal, and shall be treated as taking by descent from the devifiee. 

1857.] Price v. Taylor. 109 

And not by pmchaae from the deriaor. This being the general 
law of audi cases, it becomes entitled to the presomption that 
it is righty and therefore to the aid of the presomption, that 
cases falling apparentl j within the reason of the rule are in- 
tended to be goYemed bj it. And surelj, the law maj veiy well 
allow a dcTisee to reject all limitations upon the relation of 
ancestor and heir, except such as the law itself declares. 

If, ttierefore, the remainder is to persons standing in the re- 
lation of general or special heirs of the tenant for life, the law 
presumes that thejr are to take as heirs, unless it unequiTOoally 
appears that indiyiduals other than persons who are to take 
simplj as heirs are intended: Smith on Executory Interests, sec. 
479; Feame, 188; Burrin ▼. CharUon, 1 Man. k Or. 429; Jofnen 
T. Morgan^ 1 Bro. 0. G. 219; Leneeso/Findlay ▼. Middle, 8 Binn. 
163, 164 [5 Am. Dec. 855]. We need not refer to the mere 
feudal reasons that were involved in the origin of the rule, for 
they have passed away. 

The rule regards such devises, not according to their acci- 
dental, bat according to their substantial, character, and thus 
erects a general principle of interpretation for all such grants, 
and saves them from the mere arbitrariness that would neces* 
sarily result from supposing that every such grant has a purpose 
peculiar to itself. There is another reason, somewhat more 
specific, and which appears especially in cases where the subse- 
quent takers are described as lineal descendants of the prior 
one. In almost all such cases the sons, daughters, children, or 
issue that are to take are to be ascertained at the death of the 
&Bt taker. If, therefore, the devise be to A for life, with re- 
mainder to his eldest son and lus heirs general or special, or to 
his children and their heirs, etc., then it must be treated in one 
of these two modes. The eldest son or the children must take 
either as purchaser from the devisor, or as heirs of their ancestor. 
But generally they are not living at the time of the devise, and 
are left to be ascertained at the death of the ancestor, and not 
until then can the grant take efEact in their favor. If, therefore, 
the eldest son or the children are to take as purchasers, and 
should die before their parent, they would take nothing, and of 
consequence no children or grandchildren of theirs could take 
under kach a devise, for no one can take as heir that which his 
ancestor never owned. 

Going on this hypothesis, a devise over may take effect even 
while many of the descendants of him who was intended to be 
the first taker are still living; yet it is very certain that, as a 

110 Price v. Taylor [P( 

general role, it is intended in such devises that they shall be* 
for the benefit of all the issue of the first taker indefinitely, and 
shall not go to others so long as any of them surriYe. If we- 
treat the descendants of the first taker as deriving title by de- 
scent from him, and not by gift from the devisor, then this pur- 
pose is effected, and vrithout it, it could not be: Smith on Exec- 
utory Interests, sees. 4M, 436; Doe ex dem, Ccofidler ▼. Smithy 7 
T. B. 531; Bennett v. Earl of TanherviUe, 19 Yes. 178; Bagged 
V. Fries, 11 East, 674. 

The law first ascertains, as matter of mere interpretation, thai 
persons in a certain line or lines of descent from one person are 
to be preferred to all persons that are collateral to those lines, 
and then, in order to effectuate this intent, it starts the titlo- 
with and the descent from him, if he had such connection with 
the estate as to enable this to be done. 

This may very often defeat the specific form in which a devise 
is worded, but it meets and answers its paramount intent in its- 
definition of the objects of the testator's bounty, though it at 
the same time allovfs those to whom the title passes to defeat 
his ulterior purposes by selling the property. In some instances 
the subsequent takers are described as issue, and then the lit- 
eral interpretation would be that all descendants, children, 
grandchildren, etc., living at the death of their ancestor, should 
take together and equally; which, as an interpretation of inten- 
tion, would be much less probable than that to which the law» 
of lineal descent direct us. And in many cases the word " is- 
sue " is unaccompanied by superadded words of inheritance, and 
if regarded as a word of purchase, the result (until lately) would 
have been a mere life estate; but that word may be used as one 
of inheritance; and when it is so used, the children inherit fees, 
either general or special. 

Again: an estate-tail — ^that is, an estate that is to pass by lin- 
eal descent, according to the laws and customs of the country — 
is the very form of transmission of property to which persons- 
are naturally most favorable; and therefore we naturally incline 
to expect -this law of descent to be provided for when the do- 
visor thinks of anything beyond the laws of descent of a fee* 
simple. Now, plain as is the principle intended to be expressed 
by the rule, it has not been found simple in its application, even 
in England, where it was better adapted in its form to their 
rules of real property than it is here. And it can hardly be ex-- 
pected to be of easier application here, where, as at first ad«^ 
mitted, it was really a heterogeneous element of our law. 

1857. J Pbick v. Taylor. Ill 

BeceiTing it in the English sense of it, in its application to 
estates-tail, and considering tlie eldest son as the heir to an es- 
tate-tail genexaly we in fact reversed the order of our law. Ac- 
cording to it an estate-tail general wotdd haTe descended to all 
the chfldxen, jnst as in England it wonld pass to the youngest 
son if it was borough English land, or to all the sons equaUj 
in tail if it was gavelldnd land: Doe ex dem. BoenaU t. Harvey^ 4 
Bam. Jk Cxeas. 0.0; Hay t. MUton, Dyer, 133, pi. 6; and Anon- 
ymous, Id. 179, pi. 45; Boe v. Aistrana, 2 W. Black. 1228; or to 
all the daughters equally if it was a devise in tail female. 

It could only be a special tail male that could in strict sys- 
tematic propriefy descend with us to the eldest son. On the 
hianch of the rule making a devise to one for life, and remain- 
der to his beirs generally a fee-simple, we never thought of look- 
ing away from our law of descents in order to find the heir. 

If it was an error to admit the eldest son as theheir to an es- 
tate-tail general, under our law, it was perhaps an inevitable 
one, for, inheriting all our forms of wills and conveyances, and 
of legal practice, from England, we could not, if we would, at 
once build up a perfectly consistent system of legal principles, 
founded on our new circumstances. 

Besides this, our early practice was very probably a proper 
expression of the intention of such devises, for the law of equal- 
ity among children could not very soon change the long-estab- 
lished custom of giving a substantial preference to the eldest 
son. It continued to exist even in our statutes for a hundred 
years so far as to give the eldest son a double share, and many 
of our early decisions are upon wills nlk&de before the rule of 
entire equality was instituted. In former times it was not gen- 
erally regarded as wrong for the eldest son to inherit the whole 
real estate of his parent, subject to such charges as the parent 
thought proper to impose upon it. But now it is entirely dif- 
ferent, since law and custom have introduced entirely different 

Now, therefore, we *never suppose that a devise in form to 
create an estate-tail was really intended to pass the land to the 
eldest son, and such an interpretation could not possibly be en- 
dured, were it not for the focility vnth which such estates may 
be changed into fees-simple; and I have known several instances 
in which eldest sons were too honorable to claim an estate thus 
descending to them. 

Ihe feeling of the hardship of such an interpretation has un- 
doubtedly been the cause of some of the confusion to be found 

112 Price v. Taylor. [Penn. 

in the applioation of the role to cases where tbe anoesior had 
died without barring the entail. Now, without deciding, we 
venture the suggestion that since the hiws of intestates and of 
wills, of 1833, an estate-tail must descend according to our law 
of lineal descents, and not according to the old English common 
law; and the following reasons present themseWes in support of 
fhe suggestion: 

1. The reason why estates-tail descended to the eldest son, 
under our old hiw of descent, was because the descent of such 
estates was not provided for under our old statutes, and there* 
fore the old common law alone furnished the rule for them: Sau» 
der V. Moming-Slar, 1 Yeates, 316. 

Our old statutes of descent provided only for the descent of 
land which the decedent could dispose of by deed or will, and 
estates-tail did not then fall within that category. But the act 
of 1799 changed this, and allowed estates-tail to be sold and 
conveyed by deed in a veiy simple form. Therefore the new 
law of intestates, of 1833, expressly includes such estates, be- 
cause it declares the line of descent of all land which the dece- 
dent might have sold in his life-time or disposed of by will. 

2. Our statute of wills, passed on the same day with the 
intestate law, and one of its supplements (sixth of May, 1844), 
provides for a lineal descent, in order to prevent a devise to a 
child, or to a brother or sister, if there is no child, from lapsing 
by the death of the devisee in the life-time of the testator; and 
in such case the descent goes according to our law of lineal 
descents, on the supposition that such is the testator's intention, 
that is, on the principle of entailment until it vests. 

It may also be worthy of notice that the decisions in relation 
to contingent remainders tend in the same direction, in order to 
keep them from falling by the particular estate enduring beyond 
the life of the remainderman. 

3. The judicial adoption of the English law of primogeniture 
in estates-tail has entirely ceased to have any support in our 
laws and customs, and is now plainly incompatible with them 
all. Therefore we can no longer presume, from general words 
of entailment, that a lineal descent according to the English law 
is intended. 

4. This principle would make our law on this subject per- 
fectly simple and homogeneous, and we might hope to have wills 
of this character easily interpreted by the parties or their coun- 
sel, without the necessity that now exists of always resorting to 
the courts for an authoritative interpretation of them before 

1857.] Prick u Tatlob. 118 

maldiig or aooeptiiig a tiUe under them. It may be fhooglit 
ibat smce the act of 1855, conTertmg entails thereafter created 
into feea-simplep this principle can be of Tery little nse. But 
this estimate of it may change when it is considered that for a 
Teiy long time to come the old forms of wills and conveyances 
will continue to be nsed» and will require interpretation^ and 
that most of the wills involving these questions, written since 
1833y yet remain to be interpreted. 

And under this principle the rule of interpretation that favors 
the heir in doubtful cases would be diiliarently applied, even to 
the same language, depending upon the question of the form of 
the lineal descent. We incline in favor of an estate-tail, if it is 
to descend to all the children equally, because that is in exact 
aooordance with our laws of lineal descent, and with our cus- 
tomaxy modes of thinldng. 

We may now resume the consideration of the special case be- 
fore usy a;^ ascertain the influence which the act of 1856 has 
apon it. The purpose of that act is to convert words of entail- 
ment in estates thereafter created into words of general inheri- 
tance in fee. It repeals the statute de donia condUionalibus, 

Though this will was written before the act was passed, yet it 
did not take effect by the testator's death until some months 
afterwards. It was therefore created after the law, and must be 
governed by it. 

A will, so tax as its form is concerned, would hardly be con- 
demned if it conformed to the law under which it was written. 
And interpretation must, of course, read it as of the time when 
it was written; but a law would and does apply to the will, irre- 
spective of intention, and takes hold of it only when it goes into 
effect. Then the question arises, Would this will create an 
estate-tail independently of the act of 1856 1 

We may translate the clause in question into some approxi- 
mation to the usual language of such devises, thus: I give my 
plantation to Ann for life, with remainder to the heirs of hei 
body in fee-simple forever (or, and their heirs and assigns for- 
ever), but if she die without leaving issue living at her death, 
then I give the same to my sister's children. We have used the 
term *' heirs of the body" where the testatrix used only the 
word '* heirs," because her use of the word ** issue," as a syno- 
nym, shows this to be her meaning. She means that it shall go 
to Ann's lineal heirs, if she has any, and if not, then over. It 
is very evident that they are to take the remainder, not as per- 
sons selected out of the number of her lineal descendants, but 

AH. Dec. Vol. I-XX— 8 

114 PaicE V. Taylor. [PencL 

aa the UumI desoendants of every degree from the first taker^ 
and aooording to our law of descents, and therefore, under the 
rule in SheUetfB Gqi»^ they take an estate-tail: Feame, 188. 

It is for Ann " and her diildren after her: " Lessee of Haine» 
y. WUmer, 2 Yeates, 406; Parson v. Lefferts, 3 Bawle, 73. It is 
supposed that it is not an estate-tail, because the devise orer is 
on a definite failure of issue; that is, in default of issue living 
at the death of the first taker. But the contingency on which 
a remainder depends does not properly enter into the definition 
of the precedent estate, though it often happens that their defini* 
iions run into each other. 

The element of issue living at the death was in the cases ot 
Garter v. McMichael^ 10 Serg. & B. 429, and Maurer v. MarshaUy 
16 Pa. St. 877; and yet the devises were entailments. It is also 
to be found in many other cases of entailment: Broadhurst v. 
Morriiy 2 Bam. &, Adol. 1; Ire9on v. Pearman, 3 Bam. & Cress. 
799; Doe v. GoldsmUh, 7 Taunt. 209; Wrighi v. Pearson, 1 Eden, 
119; University v. Glifton, Id. 473; Bimington v. Cannon^ 12 O. 
B. 18; Doe dem. Gannon v. BucasUe, 8 Id. 876; Oeorge v. Mor^ 
gan, 16 Pa. St. 95. 

The limitation to the issue in fee-simple forever goes for 
nothing, as being inconsistent with the lineal descent with whidi 
the estate starts. Words of that kind are veiy often rejected aa 
incompatible with the character of the descent, just as in Eng- 
land words indicating that the property was to be divided among* 
the heirs are rejected as contrary to the usual character of the 
descents with them: Doe v. OMfmHh, 7 Taunt. 209; Doe dem. 
Gannon v. BucasOe, 8 C. B. 876; Doe v. Cooper, 1 East, 229; 
Doe ex dem. Foquett v. Wordey, Id. 424; Pierson v. Vicbers, 6 Id. 
548; Doe ex dem. Gandler v. Smith, 7 T. B. 531; BenneU v. Eari 
of TankerviUe, 19 Ves. 170: Jesaon v. Wrighi, 2 Bligh, 1. 

Such words are not inconsistent with our law of lineal de- 
scents, and they are found in the case of Maurer v. Marshall, supra, 
an estate-tail under a will since the act of 1833. An estate-tail has 
but one life's duration, if the donee dies without leaving issue 
at his death; but it is not shortened by the fact of there being a 
limitation over on that condition. A fee is converted by impli- 
cation into an entail by a subsequent limitation over on an in- 
definite failure of issue. But if ihe limitation over be on default 
of issue at death, no such implication can arise, and the limita- 
tion over merely reduces the fee to a conditional one: Smith on 
Executory Interests, sees. 128, 584, 649; Doe ex dem. BanxfieUl v. 
WeUon, 2 Bos. & Pul. 324; J^essee of Willis v. Backer, 2 Biuu. 455; 

iaai7.] Bbaufland v. McExkn. 115 

Boge T. Hoff&, 1 Serg. k B. 144; Sheel^M Witt, 8 Id. 487, note; 
Eickeibergerr. BamiU, 9 Watts, 450; StewariY. Kenawer, 7 Watts 
k S. 288. The actual fonn of this devise is for life, if Ann shall 
not have issue. It is not without example: Shaw y. Weigh, 2 
Stra. 7d8; Paxson v. LejferU, 3 Bawle, 59; but it is a meie zeYersal 
of the mode in which the thought is uanallj expseaied; and the 
substantial thought remaining the same, it does not affeei the 
question. There is a limitation to the issue in fee; but this does 
not affect the question. So thexe was in HUeman t. BtnuHatigh, 
13 Pa. St. 344 [53 Am. Dec. 474]; and in numerous other eases, 
where estatee-iail were held to have been created: Owrge y.Mor* 
gan, 16 Id. 95; Alpcus ▼. Watkim, 8 T. B. 518; Goodright dem. 
lAOe T. PvJOm, 2 Stra. 729; Wrighi ▼. Pearwn, 1 Eden, 119; 
Uttwermiy t. CUfUm, Id. 424; Measure t. Oee, 6 Bam. k Aid. 
910; ISrank v. Siovin, 8 East, 648; Lewis ex dem. (hmond v. TFa^ 
ten, 6 Id. 336. 

We are of opinion that this cause was righUj decided in the 
eommon pleas. 

Judgment affirmed. 

Will ICads axvoas Pimaos or Law, whwe testator dks after 
It of law, it affected by saoh law: OrUe^ v. ChambeHaim, SO Fa. St. IM^ 
dtiDg the priadpal caae. 

DsvniB SnciLAB to That in Pbuoital Cass ConBiDsaan and held Is 
paai eatete-tail: PotU^i Appeal^ 20 Pa. St. 172» 

Detssm to Onx fob Lnrx, with Remaivdeh to Hjobs ob Hsms or Body, 
gifea fee-atmple or fea4afl in land: Bu8h*4 Appeal, S3 Fa. St. S7; JfelTec t. 
McKude^, Id. 03; ThortiJUm t. £repp$, 37 Id. 392; Mailaek t. BoberU, 64 Id. 
I5d^ all citing the principal caae. 

That KftTAT»-TAiL ars Embbacxd ur Fikhstltakia Act of 1S33 ta 
denied, and the portion of the opinion in the principal caae in regard thereto 
held to be merely a anggeation or dkUtm and wron^ in ChUkrit^M Appeal, 37 
Pa. St. 17; OabU t. IkuA, 40 Id. 229; Ta^ t. Taylor, 63 Id. 486; but 
Lowrie^ J., who deliTered the opinion in the principal caae, in a diteenting 
opinion to Beinkari r, Ltmb, 37 Id. 488, reaffirma hta former opinion that 
iodi estatea an embr a ced within the proriaiona of the not, and deaoand to 
Mm hfliia geMnlly» and net to the eldeat aon. 

Beauplamd V. MoEjben. 

. . [38 P aaaHii TAWA Staxs, I94.J 

Va^tt IB Bbicptbd TO Dkkt Riobt III ExiaxBivcs OF WmcB Hb Iv* 

DUPED FuBOBASXB TO CoxFiDR, and on faith of which he porch med, 

and a anbaeqnent pnrchaae by the former and aaaertion of a better title 
'to the land is roid where heenooaraged the rendee to bay the land, acted 

ae bia- agent in tlie paroliaae, adjoated the lines, paid the teaee, and 

foeeived a oommisaion on the porcltase money. 


Omsnov vo Abbibt Bioar will Estop Party ovlt wkbbb Silimcb 
AMOums ro Fraud; but m to Mti dona, a different role nppliea, and a 
par^ may be estopped without fraad, on the prindple that between two 
innocent penone he whoee acta oocaaioned the Ices most snfier. 

DMnaxsu of Failurx of Titlb to Patmknt of Purohask Pbicb of Lav l 
ia eztinguiBhed if the party attempting to aet up an adrerae title ia» by 
hia acta toward the vendee at such sale, estopped from setting up soeh 

Toumsiov Takxn bt Owner of Junior Survst of Ikterfkrbnob with 
older and unoooupied surrey, by erecting improvements upon and clear- 
ing and cultivating his land outside the lines of the interference and 
osing the balance of it, including the interference, as owners usually do 
their adjacent timber-lands, by taking fire-wood, fence-rails, or timber for 
the use of a saw-mill for a period of twenty-one years, will be such pos- 
session as would give title under the statute of limitations to the part 
within the linea of such interference. But simply occasional entriea 
upon the interference for lumbering purposes will not constitute such a 

liiABURB OF Damages for Failure or Defect of Title to part of land 
oonveyed is the relative value which the part taken away bears to the 
whole, as fixed by the price agreed upon for the whole, subject, however, 
to proof by the parties that the part lest waa of greater or less value 
from particular advantages or dissdvantagsa. But the expenae of im- 
provements cannot be considered in estimatiiig such damage. 

AoTiON to recover purchase price of land. The opinion states 
the facts. 

Broum and Ihrie, for the plaintiffs in error. 

Porter and Oreen, for the defendants in error. 

By Court, Woodward, J. We have gone further in Pennsyl- 
vania in relieving purchasers of real estate from payment of 
purchase money, on the ground of defects and incumbrances, 
than courts of justice have gone in any other state or country 
"where the common law obtains. We administer not only all 
equitable relief whilst the contract remains executory, but after 
it has been executed by a deed made and delivered, we give the 
purchaser, besides the full benefit of any covenants his deed 
may contain, the right to defend himself from payment of the 
purchase money, however solemn the instrument by which it is 
secured, if he can show a clear outstanding defect or incum- 
brance, unless he expressly assumed the risk of it. 

In England, and in most of the states around us, the equi- 
table right of the purchaser to detain unpaid purchase monej 
depends on the covenants in his deed. He is not compelled to 
pay that which he would be entitled to recover back in damages 
by an action at law; but as his equity springs from breach of 

1857.] Beaupulnd u MoELkeh. 117 

A legal coTenaniy he has no title to relief wheie there is no oot- 
enanty or a covenant bat no breach. 

But with us the failure of consideration is the ground of re* 
lief » and neither covenants nor eviction are oiioontial to it. In 
England, eviction is an indispensable ingredient of a claim for 
relief against payment of purchase money. Here it is sufficient 
that eviction may take place. 

This is a veiy delicate ground on which to admimster justice 
to vendors and vendees, for in determining the possibility of an 
eviction, we have not before us the paramount claimant on whose 
will And rights the liability to eviction depends. Possibly he 
has no rights, as would appear the moment he attempted to 
a»;Bf rt them, or if he have rights, it is possible he may never at- 
ten pt to assert them; and in either case it would be against con- 
ae^^nce and equity to allow the purchaser to keep the land on 
w* jch so unsubstantial a doud rests, and the price also which 
he agreed to pay to the parly who put him into possession. 

Not intending, however, to question any of the well-settled 
rules of law which prevail with us, it is sufficient for present 
purposes to say that this case lies far beyond any extent to 
which we have carried the doctrine of equitable relief against 
payment of purchase money. 

What is this case in its general outlinest A well-paid agent 
of the plaintiff buys him a body of timber-lands in Luzerne 
county. He employs surveyors to define and settle the lines, 
and assists in person in the work. Having completed the pur- 
chase for hia principal, settled lines, paid taxes, and exercised 
other acts of agency and ownership over the lands, he advertises 
them for sale, and proclaims to the world, *' titles indisputable, 
and possession given inunediately if required." 

Within three months after thus offering the lands to the pub- 
lic, the defendants bought them of the plaintiff for twenty-seven 
thousand two hundred and fifty dollars, took possession of 
them, and paid all the purchase money, except one note for 
eight thousand six hundred and twenty-five dollars, for which 
this suit was brought. And what is the defense to this note? 
Nothing else than that the veiy party who acted as agent for 
the plaintiff, both in buying and selling these lands, has ac- 
quired a better title to part of one of the tracts. Williams has 
not, indeed, evicted the purchasers, nor even threatened to dis- 
turb them. The tract which he purchased did not belong to 
this body of lands — ^was a younger survey — and interferes only 
to the extents of one hundred and fifteen acres with one of the 

118 Beaupland v. McKkev* [Pom. 

tnctB Bold bj the plaintiff to the defendants. Theise is not • 
(act or Buggestion on this record to lead to the soq^idon thai 
Williame or Pearson & WilliamB intend to take awi^ from ths 
defendants, or eren to cbiim the interference. 

Then why should not the defendants pay ? Because they may 
be evicted, and that, in Pennsylvania, is a defense. Impoesifale. 
The title of Pearson & Williams, if the beet for the interference^ 
can never disturb McEeen and Pnrsell, because they have 
estopped themselves from setting it up and asserting it. Th^ 
were doubtless in possession of the Patterson tract whilst aei> 
ing as agents of Beaupland; but let it be granted that they had 
no interest whatever in the tract, and that the title to it has 
been acquired since their agency ceased, the question then is, 
whether a parly who stands by and encourages two several pur^ 
chasers of the same land, receives a commission on the sale, 
surveys and adjust lines, and performs all necessary acts for 
the protection of the apparent title, can afterward buy up and 
assert a better title to part of the land. Surely he cannot until 
all distinctions between &aud and fair dealing come to be eon- 
founded. He is estopped from denying the right in whose ex- 
istence he gave the purchaser reason to confides 5 Watts & & 

The rule is dear that mere silence will postpone only where 
silence was a fraud, and a fraudulent concealment of title can- 
not be imputed to one who was ignorant that he had any title 
to conceal, but positive acts stand on a different ground. For 
these his title may be postponed even without fraud, in aooord- 
anoe with an equitable principle of universal application, that 
where a loss must necessarily fall on one of two innocent per- 
sons, it shall be borne by him whose act occasioned it: P^Oib* 
s<m, 0. J., in Bobinmm v. JutHee, 2 Pear, ft W. 22 [21 Am. 
Dec. 407]. Though the ordinary effect of estoppel is confined 
to the persons of those to whom it attaches, yet where it arises 
upon the conveyance of land, it operates upon the estate apart 
from the person. Thus in Bawbfn*9 Oaae^ 4 Oo. 62, where A, 
having nothing in land, demised it by indenture to B for six 
years, the lease was good at the time as against the lessor, but 
when he obtained a subsequent term for twenly-one years in the 
same land, the term itself was bound by the estoppel, and the 
lease became good against all parties to whom the estate might 
subsequently come. So it was held in Hdpe v. Hereford, 2: Bam. 
ft Aid. 2A2, that a fine levied by an heir who had no estate in 
the land at the time, either contingent or vested, bound the 

1857.] Beaupland v. McKeen. 119 

€8tate by estoppel opon its sabeequent descent from the ancestor. 
And see WM> y. Austin, 7 Man. k G. 701, and Doe t. Oliver, 
and the notes thereto, in 2 Smith's Lead. Oas., Am. ed., 620. 

These were estoppels arismg from oonteTanees, bat we haTs 
held that a party may be estopped aaeflbctnallybj matter tn pats 
as by matter of record, which is a higher species of eridence 
than conrejances: Martin y. Ive$, 17 Sezg. & B. 864; Oammon' 
waUh y. MolU, 10 Pa. St. 527 [51 Ajn. Deo. 409]. 

Without going further into the \a,w of estoppel, and inyoking 
only those familiar principles which we haye often applied tc 
agreed or consentable lines between adjacent estates, it is beyonci 
question that, upon theeyidenceof Pearson ft'^lliams'sagenc} , 
that whicli was rejected by the court below as well as that which 
was admitted, they and all persons claiming the Patterson tract 
under them would be estopped from extending its lines beyond 
the boondary of the Edgerton surrey. If, then, the Patterson 
suryey was t}ie better title — if. when MeKeen and Puzsell pur- 
chaaed the Edgerton tract, the Pfne Forest Oompany might 
baye taken away the interference from them— -the moment that 
title yested in Pearson & Williams it inured to the benefit of 
Beaupland, and through him to HcEeen and Pursell, and thereby 
extinguished all defense to the note in suit. Whateyer hazards 
of loss they were exposed to when they made their note, they 
are exposed to none now, for the parties who encouraged them 
to inyest money in that title haye bought in the adyersary titte, 
and are restrained by a salutary rule of law from asserting it to 
their prejudice. 

This yiew of the case was suggested to the court below by the 
second point submitted by plaintiff's counsel, but the court 
waiyed it with the remark that Williams's agency for Beaupland 
did not affect the Patterson tract if that tiUe was complete be- 
fore the Patterson tract came into possession of Williams, and 
they put the cause to the jury upon different grounds. 

The judgment must be reyersed not only because the true 
ground for ruling the cause was repudiated, but because !.•« 
eridence of Williams's agency, which was rejected, was compe- 
tent, and ought to haye been admitted. 

Had the court admitted that eyidence, and ruled the case upon 
the second point of the plaintiff, there would haye been an end 
of it; but, inasmuch as we cannot assume that the case on re* 
trial will present the same aspect it exhibits on the present rec- 
ord, we must reyiew the points taken by the court below, co 
that the cause may, if dependent on them, be properly tried. 

120 Bbaupland v. McE^ben. [Pcnn. 

The o&se involTed an interference of soryejs. The Edgerion 
bract, for ^hich in part the note was gi^en, was the oldest sur- 
vey , and the Patterson tract, now owned by Pearson & Williams, 
and interfering with the Edgerton to the extent of one hundred 
and fifteen acres, is the younger survey. There was an ancient 
possession on the Patterson tract not within the interference, 
l)ut at a well-known point on the Easton and Wilkesbarre turn- 
pike, called Bear creek. Here was a tayem-house and saw-mill 
from an early day, and a few acres of land cleared and culti- 
vated. There had been no actual possession of the Edgerton 
tract. The learned judge, following the docbrine which origi- 
nated with Woffffonerand HcuHnfp^ 6 Pa. St. 800, and was recog- 
nized by two judges of this court in Hole t. BiUenhouse, 10 Id. 
306, the first time that case appeared in this court, rule^ 
that the possession of the Patterson tract at Bear creek was in 
law a possession of all the land within the lines of the surrey, 
and if kept up for twenty-one years would give title to the whole 
tract. This established the Patterson title to the interference, 
and to that extent failure was shown in the consideration of the 
note in suit. 

It is due to the memory of the learned judge, now no more, 
to state that the cause was tried before Mole y. Bittenhouae, supra, 
iiad its final ruling in this court as reported in 25 Pa. St. 491. In 
that case the doctrine of Waggoner and Hastings, supra, was 
exploded in an opinion, of which I may be permitted to say that 
any attempt to make the reasoning stronger or clearer than it is 
would be extravagant presumption. 

With excellent good taste, the counsel for the defendants in 
error do not resist the ztding in Hole v. BUtenhouse, supra, the 
last time it was here, nor attempt to justify the position assumed 
by the court below on the trial of this cause. They agree that 
Waggoner and Hastings, supra, and its cognates are not law, and 
that it was a mistake to rest this cause on them; but they main- 
tain that the result arrived at by the court below was right, be- 
cause the evidence clearly showed that there had been actual 
possession of the interference for more than twenty-one years 
by those claiming title to the Patterson tract. This is denied 
on the other side, and it is said the only possession of the inter- 
ference was by timber-stealers, who were unconnected with the 
Patterson title. This involves a question of fact to be decided 
by a jury. 

If the fact be that those in possession of the Patterson tract 
at Bear creek made such use of the interference as owners ordi- 

1857.] BsAUPuuiD V. McExm. 121 

nanly make of their adjooent iimber-landa— taking fiie-vood, 
fanoe-xmilB, or lumber firom it for the use of iheir mill, for a 
period of one and twenty yean, this woold be poeaeasion^ and 
would gi^e title under the statute of limitations. ' GonstmctiTe 
possession would not oust the real owner of the Edgerton sur- 
▼07, but actual possession would» and such acts as I have enu- 
merated liaTe repeatedly been held to constitute actual posses- 
sion. The marking of lines, and payment of tazes, would be 
additional assertions of ownership which would help to make 
oat the actual possession. But if this was mere marauders' 
ground — ^if anybody who wanted to get lumber manufactured 
at the Bear creek mill went upon the interference to take tim- 
ber, without regard to the Patterson title — if, in a word, the 
ouly acts of possession were occasional entries for lumbering 
puiposee — they would not constitute the possession oooential to 
UUe: Barber y. WtUing, 10 Watts, 141. 

If on the next trial this question of fact should be so found 
as to give title, under the statute of limitations, to the owners of 
the Patterson tract, the next inquiry will be, What ia the meas- 
ure of damages which the defendants will be entitled to defalk 
against their note? 

The rule that applies to damages on breaches of covenant of 
title is applicable here; and, according to that, either parly 
may produce evidence to show the relative value which the part 
taken away bears to the whole, and this, as was said by Kent, 
chief justice, in Morris v. Phdpa, 5 Johns. 66 [4 Am. Dec. 323], 
operates with equal justice as to all the parties to the convey- 
ance. In Lee v. Dean^ 8 Whart 881, Judge Kennedy reasserted 
the rule with great emphasb as applicable to a case untainted 
irith fraud. 

The relative value of the part tiO the whole is to be estimated 
with regard to the price fixed by the parties for the whole. The 
whole purchase being assumed to be worth the price agreed on, 
what part of the price would fairly be represented by the part 
taken away? This was the question in Stehiey v. Irvine, 8 Pa. 
St. 600, though the case is so defectively reported that the point 
ruled is scarcely discernible. 

It was competent for either party, under this rule, with its 
limitation, to give evidence of the peculiar advantages or dis- 
advantages of the part lost, and the inquiry should not be un- 
duly restrained whilst it is confined to the proper point; but 
undue latitude was allowed to it when the cost of erecting a 
r-mill on an adjoining tract was gone into. We think there 

122 Beach v, Schoff. [Penn. 

was error in admitting all the evidence in relation to the cost of 
the water-milly dam, plank road, and other improvements of tne 
defendants. We have already intimated that the court erred in 
rejecting the receipts of Pearson & Williams for moneys paid 
them by the plaintiff for their agency. The receipt of Hoyt 
also OQght to have been admitted. 

There was no error in admitting Ford's deposition, for whaf 
he swore to were open and notorious facts occurring in the 
presence of others, and not confidential communications from 
client to counsel, such as are privileged in law. 

Having now alluded sufficiently to the several errors relied on, 
the judgment is reversed, and a venire facias de novo awarded. 

Estoppel bt Silbnck, MissBPBssENTATioir akd Coitosalmxvt: See 7Htu9 
V. AfoTM, 63 Am. Dea 665, and cases in note 670. Silence withoat knowl- 
edge works no estoppel: HiU v. Epley^ 31 Pa. St. 334, citing the principal 
case. Party leading another to purchase by means of misrepresentationa is 
estopped to deny the existence of the facts in which he induced the other to 
con6de, or to set up an adverse claim to the property or right: See PhiUipH v. 
Blair, 38 Iowa, 654; L^manT, Flanigan,5VhUA. 161; McKeenv, Beaupiand^ 
35 Pa. St. 490 (arising out of the same facts as the principal case); lVood$ v. 
WiUoji, 37 Id. 384; Youngmcm v. Lhm, 52 Id. 417; MUligar v. Sarg, 55 Id. 
225; Chapman v. Chapman^ 59 Id. 218; Lawrenot v. Luhr^ 65 Id. 241. 

Vendob and Vsndkb, Msaborb of Daxaobs bktwien, for failure of title: 
See Pemander v. Dunn^ 65 Am. Dec. 607» and note 608. The principal case 
is cited in DaUon v. Bowter^ 8 Nev. 198; Mwrpky v. Biehardmm, 28 Pa. St. 
292; Roaenberger v. Keller^ 33 Gratt 493, to the point that the meaanre of 
damages ought to be the purchase price for the whole if title fikila as to the 
whole, or a proportion of the purchase price for the part as to which title fails 
nnless such part is proved to be more or less valuable. 

Possession roa Twbktt-onb Ybabs of interference, by taking fire-wood, 
etc, will give title under the statute of limitatians: See Timng v. Herdie^ 55 
P^. St 175; Peifton v. Barton, 53 Tax. 303, where the prindpal ease is cited 
on this point; and Hole v. RUtaihmuey 37 P^ St. 120, where it qnalifiea the 
proposition as stated in the principal case. 

Beaoh u Sohoff. 


Navioatob oir Stbxam Wuioh is Pubuo HionwAT mat Rbmovb Obstbdo- 
noN, as raft or the like, in the most speedy way, if the ezigenciea of the 
case require it, and is only liable for injury thereby where he is guilty of 
gross n^Ugenoe or willful destruction. Party removing the obstructioD 
is bound to use the same degree of caution that a careful man would exer- 
cise in reference to his own property. 

Wbbbb Loss must Fall on One op Two Innocent Pbbsons, it should be 
borne bv him whose accident was thu cause of It. 

18S7.] Beach v. Schofp. ItS 

TmPAflS. The &ctB aze stated in the opimon. 
Mofwroe, for the plaintiff in error. 
Bifan^ toot the defendant in error. 

Bj Goort, Ehox, J. Winthrop Beach» the pbuntiff in error 
«nd defendant below» in running lumber down the Cowaneaque 
riTer, in Tioga county, found a raft of spars belonging to the 
plaintiff lodged on a mill-dam. Alleging that the spars pre- 
Tcnted his passing over the dam with safety, he removed two of 
them, one of which was lost. • To recover for the lost spar and 
the expenses incurred in putting the raft again in order, this 
action of trespass was brought. 

Upon the trial the defendant's counsel requested the court to 
chaige the jury: 

1. That if Vbe plaintiff by his negligence contributed to the 
injmy, he could not recover, although the defendant might have 
been also guilty of negligence. 

2. That if the jury believed from the evidence that the plain- 
tiff's raft was run and left by him in the course for three or 
four weeks, and until the next freshet, and the defendant in 
descending the river with his rafts was obstructed by the plain- 
tiff's raft, the defendant had the right to remove the plaintiff's 
spars to effect a passage, and in doing so, is not liable for the 
loss of plaintiff's spars, unless he was guilty of gross or willful 

To the first proposition the court of common pleas answered 
that it was not applicable to the case. 

To the second, that the defendant had the right to remove 
the spars from the course, but in so doing he was " bound to 
exercise the same care in removing it as an ordinarily careful 
man would have used in the removal of his own property from 
the same or a similar position." 

We see nothing in the case which convicts the court of error 
in refusing to apply the well-establiahed principle that no re- 
cofeiy can be had when the loss springs from mutual negligence. 
But we are of opinion that there was error in the instruction 
that the defendant in removing the spars was bound to the 
sime care that an ordinarily careful man would exercise in re- 
iDoving his own properly from a similar position. 

The Cowanesque river is a public highway, and as such is open 
to the use of the public for the purposes to which it is applicable. 
ft can only be used for descending navigation in times of high 
water, which usually lasts but for a short time. During the 

124 SiEGEL V. Chid&st. [PeaxL 

period of navigation it is very important to the lumber trade 
that the oourse should be kept free from obstruction; and where 
one descending the stream finds it blocked up so as to arrest 
his progress, be may undoubtedly remove the obstruction, and 
that too in the most speedy manner, if the exigencies of the 
occasion require it. At the most, he is only liable for gross 
negligence or willful destruction in removing the obstruction. 
Any other rule might result in loss to one wiUiout fault, for the 
purpose of protecting the person who by accident or otherwise 
had caused the obstruction. 

*' Where a loss must fall on one of two innocent persons, ii 
should be borne by him whose accident was the cause of it:' 
Philiber v. ifofeon, U Pa. St. 807. True, the defendant wat 
not justified in doing unnecessary injury to the plaintiff's prop- 
erly; but he had the right to protect his own property, even at 
the expense of loss to the plaintiff's. And this was denied to 
him under the rule applied upon the trial; for if he was bound 
to act as the owner of the spars would act under the same cir- 
cumstances, the right of preference was gone. 

The defendant was entitled to an affirmative answer to his 
second point, and because he did not get it, the judgment mnat 
be reversed. 

Judgment reversed, and venire de novo awarded. 

Stbxam as Hiohwat, Obstbdotions nr, and Bight to Bmovit 8m Pcr» 
ter V. AtteHf 06 Am. Deo. 760, and note coUeotiiig the prior ceaee in the 

Wkbbs One of Two Innocbht PABxm must Smmn* he who ooatribated 
most, or whoee accident molted in the iignry, mnet hear the loei: See Buiz v. 
Nortom^ 00 Am. Deo. 618. 

Seesoel u 

:iii ;i 

p8 PimRz.TAjnA Stats, 279.] 

Faov IBAT Moim' WuiOH WAS Obtaxivxd on Pkbsoital Gbbdit or Member 
OF Fmc was need by the firm and for iU ezolatiye benefit wUl not of it- 
■elf make the finn liable to the creditor for inch debt, bat would be a 
good consideration to support a subsequent promise by the firm to pay 
the debt. 

CoHFiasiov OF JuDOMSNT BT Pabthibs TO Gbbditob, on promise to pay the 
indiyidnal debt of a member of the firm for money borrowed by him and 
used by and for the exclusive benefit of the firm, is not the application of 
partnenhip effects to the private debt of a member of the firm, but the 
honest assumption by the partners of a debt created for their joint bene- 
fit, and which in equi^ and oonsoienoe they are equally bound to pay. 

1857J SlEOEL V. Chidsit. 125 


CLOsnrs Usx or Fmc is not a fnadnloit traaaaotioii as to the partners, 
because they all assent to it, and not as to the firm creditors, if they 
have no lien on the partnership effects, becanse their eqoities must be 
worked oat throagh the partners themselves. 
LfsoLTSBCT DOK3 iroT OF Itself Work DISSOLUTION OF Pabtxsbsiiip, nor 
divest partners of their authority over firm property. 


roamoN of Insolvent Estate, even if it hava the effect of giving hiai a 
preference over other creditors. 

Feiohsd iasne to detennine the right to proceeds of the per- 
Bonal pr op er ty of an inaolTent partnership. The opinion states 
the facto. 

Brown and Ihrie, for the plaintiff in error. 
Cfreen, for the defendant in error. 

By Ck>nrt, Woodwabd, J. ITnqaefirtdonably the debt of John 
Siegel, Jan. 9 to hia father, John Siegel, sen., was originally an 
indiTidnal, and not a partnership, debt. The paper ta^n for it 
prores it soch, and the verdict has fixed it as the debt of one 
partner. But it is equally clear that the money, though ob- 
tained on the personal credit of Siegel, jun., went into the part- 
nership funds, and was used for the exduaiTe benefit of the 
firm of Field & Siegel. Now, although this circumstance would 
not of itself make the firm liable to the creditor, Qraeff t. BUch- 
man, 5 Watte, 454; Clay y. CoUrell, 18 Pa. St. 412; yet it would 
be a consideration to support the firm's subsequent promise to 
pay. The single bill of the twenty-third of March, 1852, was 
each a promise. It was an express undertaJdng on the part of 
the firm, upon a sufficient consideration, to pay this debt out of 
the partnership assete. It became at that moment a partnership 
debt for all intente and purposes. 

This was not the application of partnership effecte to the pri- 
vate debt of one member of the firm, but it was the honest and 
lair assumption by both members of the firm of a debt which 
had been created for their benefit, and which in equity and con- 
science they were both equally bound to pay. Field swore that 
the money had always been treated as a partnership debt; that 
the interest was paid out of the drawer of Field & Siegel, and 
that we gave the note of March, 1852, for that of August, 1847. 
The creditor advanced his money for the purposes of the firm— 
it went to their use, it was represented in the effecte which they 
possessed, and both members of the firm, with a full knowledge 
of the facte, concurred in giving it the form of a partnership 
debt. It is impossible to think of such a transaction as frauda- 

It6 SiBOOEL V. Chidsst. [Pcni^ 

leni Fmadment as to whom? Not as to Field, because h» 
assented to all that was done, and all the authorities agree that 
' where a creditor reoeires partnership paper from one partner in 
discluuqKe of Us separate debt he will repel the presumption of 
fraud by showing that it was given with the consent of the other 
partoers: See Story on Part. 202, and the cases cited in notes. 
Nor could it be a fraud on partnership creditors, for they 
have no lien on partnership effects, and whaterer equities are- 
available to them must be worked out through the partners. We 
held, in Baker^a Appeal^ 21 Pa. St. 82, that the right to confine 
a partner, or those who claim under him, to his interest in the 
surplus, after payment of the partnership debts, is an equity 
which rests in the other partners alone, and not in the creditors- 
of the firm; and therefore, that where one partner sells his in- 
terest in the firm to anotherj>artner, upon an express engagement 
of the latter to pay the partnership debts, he may make a differ- 
ent disposition of the assets, and leare the creditors only his- 
personal responsibility. This is a much stricter rule, as to the 
equities of partnership creditors, than any that we hare occa- 
sion to invoke in this case. 

If as between the partners there was no equity to forbid the 
assumption of Si^gel's debt, the creditors of the partnership 
could have none. If it was not a fraud on the firm» it was not 
a fraud against the creditors of the firm. But that it was not a 
fraud on the firm I have shown already, for both members 
assented to the assumption. And what possible equities can 
partnership creditors be thought to possess which do not belong* 
equally to old Mr. Siegel? True, he advanced his money to his- 
son, but it was for the partnership. It entered into the busi- 
ness of the firm, and purchased just as lazge a portion of the 
assets as he now claims to take out of the firm. What more 
did the money of any other creditor do ? As partnership prop- 
eriy has been acquired by means of partnership debts, it ought 
first to be applied to the discharge of them. This is the ground 
on which text-writers rest the primary claims of joint creditors, 
and it is erident that Siegel is as clearly on this ground a» 
Ohidsey- If not a joint creditor at first, he was only not so in* 
form, and equity regards substance rather than form; but he 
became a joint creditor in form as well as substance before dis- 
tribution commenced, or any counter iQgal rights had vested. 
He stands, therefore, a partnership creditor among partnership 
But it is objected that he was made so — that his claim 

1857.] SlEGEL V. CH1I>S£Y. 127 

assumed by ihe firm after they were insolTeni. The point put 
to and affixmed by the court was, that " if at the time of the 
giving this judgment note to John Siegel, sen., by Field & Sie- 
gel, tiie firm was insoWent/' etc. Now, the juxy oould not fail 
to nnderstand from the affirmance of this point that if Field & 
Siegel were unable to pay all their debts, they had no right to 
assume the debt to Siegel, sen. Is this hiw ? 

TTnder the statutes of bankruptcy, the judicial deelaration of 
the fact relates back to the first act of bankruptcy, so that from 
that period the bankrupt is deemed divested of all of his prop- 
erty and eflTects, and, by operation of law, as soon as assignees 
are appointed, it is Tested in them by relation from the same 
period. It is dear that after an act of bankruptcy partners 
could not pledge their efiSacts to the payment of a debt of one of 
their number; but it was not made a point in this case, nor 
found by the jury that any act of bankruptcy had been com- 
mitted before the tweniy-third of March, 1852. Simple insol- 
vency, however, without stoppage of payment, without an assign- 
ment, or any judicial process, does not work a dissolution of the 
partnership, nor divest the partners of their dominion over the 
partnership property. They may not make a fraudulent dis- 
position of it, but the confession of judgment to a bona Jide 
creditor, even though it have the efTect of giving him a prefer- 
ence over other eredito^^ is not a fraudulent disposition of an 
insolvent estate. 

It would not be questtuiied that an insolvent firm might make 
a valid sale of goods, or pay a debt, or make an assignment, or 
exercise the jus diepanendi in any form that was consistent with 
good faith and &ir dealing. Why, then, may they not confess a 
judgment to a bonajide creditor? The whole force of the argu- 
ment on the part of Ohidsey consists in the assumption that this 
was an application of partnership effects to the separate debt of 
one of the partners. If such an application by an insolvent 
firm irould indeed be fraudulent as to partnership creditors (a 
conclusion which I am not prepared to admit), the assumption 
is unitArxanted that this was a separate debt after the twenty- 
third of March, 1862. Regarded by both partners as essentiaUy 
a partnership debt from the first, it became on that day a part- 
nership debt in form and efTect, and from that time to this 
Siflgel, sen., has been a partnership creditor. 

The only peculiarity which the record discloses is that he 
acquired, by superior diligence, the first lien on tiie debtors' 
goods. This he had a right to assert, and the court ouf^hl te 

US Philadelphia Era R R Co. v. Cowell. [rcim. 

have rendered such answers to the points propounded as would 
hare secnired to him his rights. 

There are seyeral questions of evidence on the record, but the 
Tiew that has been taken of the main points in controversy 
renders it unneoessaxy to notice the bills of exception to evidence. 

The judgment is reversed, and a ventre de novo awarded. 

Pabtnibship and Individual Crbditobs, Rights and Puoiutibs or: 
See Coover^i Appeal^ po8i, p. 149» and note, where cases are collected. 

Fact that Monet Borrowed bt Partner, for Which He Givbs his In- 
dividual Note, was applied to the purposes of partnership business, does 
not make such note a firm debt: fforth Pennsylvania Coal Co.* it Appeal^ 45 
Pa. St. 185, citing the principal case. 

CoNrEssiON OF Judobcent to Bona Fide Creditor, even bt Insolvent, 
IS NOT Fraudulent Disposition of Estate: WUmer^g Appeal, 45 Pa. St. 
462, citing the principal case. 

Philadelphia, Wilmington, and Baltdi obb Rail- 

BOAD Company v. Cowell. 

[28 PamnTLVAXiA 8tatb, 829.] 

Where Dirbotor of Railroad Company Subscribed for additional shares 
of stock for and in the name of a certain large stockholder in the oorpo* 
ration, to relieve the company from embarrassment, such stockholder 
being at the time a resident of a foreign country, and immediately noti- 
fied the latter of what ho had done, and the stockholder never made any 
reply, and the aocming dividends on his other stock were applied in pay- 
ment of the additional shares, and seven years afterward he demanded 
and sued for the dividends, and claimed that the subscription for the ad- 
ditional stock was unauthorised, it was held that his long silenoe, after 
being informed of the facts, was evidence to be submitted to the jury of 
his ratification of the act of such director in making the subscription. 

LoMO Silence to Ck)M!iTiTUTB Batifioation of Unauthorized Act is not 
confined to cases where the relation of principal and agent exists between 
the person doing the act and the person affected by it; such conduct is 
evidence of a ratification, more or less expressive according to the cir- 
cumstances under which it takes place. 

Ratifioation of Unauthorized Act of Stranger may not be implied as 
a conclusion- of law from the silence of the party affected by the act, but 
it does not follow that it is incompetent to be submitted to the jury; 
and it may, as a circumstance, with others, be submitted to the jury as 
facta from which they may imply such ratification. «. 

Director of Railroad Company Stands in Fiduciary Rfj.ation to 
stockholder, and in acting for him in his absence, cannot be regarded as 
a stranger. 

Statute of Limitations does not Run against Action for Diyidsstds 
of stockholder in corporation until after demand sad refusal, or notiot 
that the stockholder's rij^ht to dividends is denied. 

1857.] Philadelphia sic. R R Co. v. Cowell 129 

AonoH bj stockholder against railroad company for diiideiidi 
due on shares of stock. Gowell was a large holder in the stock 
of the defendant company. He himself had gone to reside in a 
foreign country. One of the directors of the corporation, dur- 
ing his absence, for and in his name, snbscribed for additional 
shares of stock to relieve the company from emharrassment, and 
notified him of his action, bat Cowell nerer answered in any 
manner. During his absence the dividends accming on his 
other stock were applied in payment of the additional shares. 
Seven years after the subscription for the additional stock Gow- 
ell demanded his dividends on his original subscription, and 
denied the subscription to the latter shares as unauthorized. 
The above facts, together with his long silence, were offered as 
evidence of bis ratification of the said director's action in mak- 
ing such subscription for the additional shares. The remaining 
(acts appear in the opinion. 

SL O. T, CampbeU, for the plaintiff in error. 
H. J. Williams, for the defendant in error. 

By Court, Woodwabd, J. The question presented bj the first 
error assigned is not whether the evidence offered and rejected 
proved the plaintiff's ratification of Fisher's subscription, but 
whether it tended to prove it. 

Suppose the court had admitted the evidence, and the juiy 
had found the plaintiff's assent and ratification, could he have 
expected us to reverse the judgment on the ground that a ques- 
tion of fact had been submitted and found without any evi- 

Could it have been said that the facts set down in the bill of 
exception, fully proved, were no evidence of ratification; that 
they were so entirely irrelevant as to be unworthy of considera- 
tion by rational minds in connection with such a question; that 
tbat question stood just as far from demonstration after sucL 
endence as before ? 

Unless this could have been said, and must have been said in 
the event supposed, the judgment now before us must be re- 
versed; for the question here is, in essence and substance, ex- 
actly the same as it would have been then. 

If this evidence might have satisfied the juxy, that is, if it 
were of a quality to persuade reasonable men that Cowell did 
assent to Fisher's assumed agency after he had full knowledge 
of what had been done, it should have been admitted. The 
question in the cause was for the juiy, and not the court. But 

Am. Dbo. Vox.. LXX—9 

130 Philadelphia etc. R R. Go. t;. Cowell. [Penn. 

the fact to be inquired for, like all mental conditions and opera- 
tionSy could be established only inferentially. We judge of Uie 
mind and will of a party only from his conduct, and if he have 
done or omitted nothing which may fairly be interpreted as in- 
dicatiye of the mental puxpose, there is indeed no CTidence of 
it for either court or jury; but if his conduct, in given circum- 
stances, affords any ground for a presumption in respect to the 
mental purpose, it is for a jury to define, limit, and apply the 

The most material droumstanoe in the offer was the silenoe of 
Mr. Cowell. Fully informed about the last of the year 1848 as 
to what had been done in his name, and the motives and rea- 
sons for doing it, he Jid not condescend to reply for nearly 
seren years. It is insisted that this fact, even when taken in 
connection with the other circumstances in the offer, was no 
evidence of his intention to assent to the new subscription. 

The argument admits that where the relation of principal and 
agent has once existed, or where the properly of a principal has 
with his consent come into the hands and possession of a third 
party, the principal is bound to give notice that he will not 
sanction the unauthorized acts of the agent, performed in good 
faith and for his benefit; but it is said, and truly, that Mr. 
Fisher had never been an authorized agent of the plaintiff for 
any purpose, and that the plaintiff's property had never been 
intrusted to him. It is on this distinction that the learned 
counsel sets aside the case of Kentucky Bank v. Gombs, 7 Pa. 
St. 546, and indeed, all of the authorities relied on by the de- 

I do not understand counsel to mean that there can be no 
valid ratification unless one of the conditions specified — either 
prior agency or possession of principal's property — ^has existed, 
but that silence after knowledge of the act done is evidence of 
ratification only in such cases. It must be admitted that the 
act of a mere stranger or volunteer is capable of ratification, for 
all the authorities are so; but the argument is that the silence 
of the party to be affected, whatever the attending circumstances, 
cannot amount to ratification of the act of a stranger. 

In Wibon v. Tumman, 6 Man. & Q. 242, Chief Justice Tindal, 
on the authority of several old cases, considered that the effect 
of a ratification was dependent on the question whether the 
person assuming to act had acted for another, and not for him- 
self. The act, it would seem, cannot be ratified unless it wa« 
done in the name of the person ratifying. EcUum qitis habere 

1857.] Philadslfhia etc. R R Ck). u Gowklu 131 

non potest, quod ^p&ius nomine nan ed gettam. And the genend 
rale ie thus expressed in the Digest, 60: 8iqui$ raium habuarU 
fuod gegium ed^ obdringihtr mandaii adione. 

If, then, the principle of law be that I can ratify that only 
which is done in my name, bat when I have ratified whaterer is 
done in my name I am bound for it, as bj the act of an aathor- 
ised agent, it is apparent that my silence, in Tiew of what hai* 
been done, is to be regarded simply as OTidenoe of ratification, 
more or less expressire, according to tiie circomstances in which 
it occurs. It is not ratification of itself, bat only evidence of it, 
to go to the jury along with all the drcamstances that stand in 
immediate connection with it. Among these, the prior relations 
of the parties are very important. If the pariy to be charged 
had been accustomed to contract through the agency of the indi- 
vidual assuming to act for him, or had intrusted property to his 
keeping, or if he were a child or servant, partner or factor, the 
relation, oonjunciiania favor, would make silence strong evidence 
of assent. 

On the other hand, if there had been no former agency, and 
no peculiarity whatever in the prior relations of the parties, 
silence — a refusal to respond to a mere impertinent interfer- 
ence—would be a very inconclusive, but not an absolutely irrel- 
evant, circumstance. The man who will not speak when he 
sees his interests affected by another must be content to let a 
jury interpret his silence. 

It is a dear principle of equity that where a man stands by 
knowingly and suffers another person to do acts in his own 
name, without any opposition or objection, he is presumed to 
have given authority to do those acts. Semper, qui non pro- 
hibei pro se iniervenire, mandare credUur: Story's Agency, sec. 

We do not apply the full strength of this principle when we 
rule that the plaintiff's silence, in connection with the circum- 
stances offered, was evidence fit for the consideration of a juiy 
on the question of ratification. If mental assent may be inferred 
from circumstances, silence may indicate it as well as words or 
deeds. To say that silence is no evidence of it is to say there 
can be no imjdied ratification of an unauthorized act— or at the 
least to tie up the possibility of ratification to the accident of 
prior relations. Neither reason nor authority justifies such a 
ooodnsion. A man who sees what has been done in his name 
and for his benefit, even by an intermeddler, has the same power 
to ratify and confirm it that he would have to make a similar 

132 Philadelphia etc. R R. Co. t;. Gowell. [Penn. 

contoraot for himself; and if the power to ratify be conceded to 
him, the fact of ratification must be provable by the ordinary 

For these reasons, the distinction on which the argument for 
the defendant in error rests seems to us to be too narrow. 

The prior relations of the parties lend great importance to the 
fact of silence, but it is a mistake to make the competency 
of the fact dependent on those relations. I am aware that 
Livermore cites with approbation (p. 60) the opinion of civil- 
law writers, that where a volunteer has officiously interfered in 
the affitirs of another person, and made a contract for him with- 
out any color of authority, such other person is not bound to 
answer a letter from the intermeddler, informing him of the 
contract made in his name, nor is his silence to be construed 
into ratification. But it is to be remembered that such writers 
are not laying down a rule of evidence to govern trials by juiy, 
but are declaring rather the effect upon the judicial mind of the 
party's silence. It is one thing to say that the law will not 
imply a ratification from silence, and a veiy different thing to 
say tliat silence is a circumstance from which, with others, a 
jury may imply it. Because evidence does not raise a presump- 
tion so violent as to force itself upon the judge as a conclu- 
sion of law, is the evidence therefore incompetent to go to a jury 
as ground for a conclusion of fact ? No writer with a common- 
law jury before his eyes has ever maintained the affirmative of 
this proposition. If it could be established, it would abolish 
that institution entirely, and refer evexy question and all evi- 
dence to the judicial conscience. 

But it is time now to remark that this case is far from being 
that of a mere volunteer or intermeddler. True it is that Mr. 
Fisher had not any proper authority to make the new subscrip- 
tion, but Messrs. Binney and Biddle, the friends and corre- 
spondents of the plaintiff, had consulted him in reference to the 
plaintiff's interests in this railroad company; and as a director 
of the company, he stood, in some sort, as a representative and 
trustee of the plaintiff, who was in a foreign countty , and with- 
out any authorized agent here. The proposition that ever^ 
stockholder should subscribe new stock to the extent of ten pet 
cent was designed, and as the event proved was weU designed, 
to retrieve the fortunes of the company, but it was necessary to 
its success that every stockholder should come into the arrang<*- 
ment. The emergency was pressing, and Mr. Fisher, mauif esUy 
acting in perfect good faith, made the subscription for the 

Id57.] Philadblfhia ktc. R R. Co. v. Cjowill. 183 

phiniiff, Trhich lie belieyed the plaintiir would not hedtftte to 
nuike if peraonally present. 

When the plaintiff was folly informed that a eagaeiona finan* 
der, to whom hia chosen friends and correspondents had re* 
fcnred his interestB, and who stood in the fiduciazy relation of 
a director, had pledged him for a new subscription, which dr- 
ci Distances seemed to justify and demand, I say not that he 
was bound by it, nor even that he was bound to repudiate it, 
bat that his delay, for near seven years, either to approve or 
repudiate, was a fact fit to be considered by a jury on the ques- 
tion of ratification. The subscription was made in the plaintiff 'a 
name, and accepted by the company as his, and it does not 
appear that they knew Fisher was acting without authority. 
The offer was to show that it was highly beneficial to the plain- 
tiff. It was then such an act as is capable in law of being rati- 
fied. The plaintiff might make it his own by adoption. Did 
he adopt it? He did if he ever gave it mental assent. How 
could the company show assent, by anything short of a written 
agreement, if not by evidence of the nature of that in the bill 
of exception ? The medium of proof, where a mental purpose 
is the object of inquiry, must conform to the mode of manifesta- 
tion. To say that you may prove assent, but may not give the 
circomstanoee in evidence from which it is to be implied, is to 
say nothing. 

Strongly persuasive as we consider the offered evidence, we 
do not put our judgment so much upon the strength as upon 
the nature of it. We think it was calculated to convince a juzy 
that the plaintiff did indeed assent to and approve of what Mr. 
Fisher had done in his behalf, and therefore it should have been 
received and submitted. 

If they should find from it the assent and ratification of the 
plaintiff, the subscription became, as between him and the com- 
pany, a valid contract, and on his failure to pay the installments, 
the company had a right to apply thereto the accruing dividends 
on his old stock. 

When he pays what remains unpaid on the installments, he 
will be entitled to his certificates of stock. 

The defense under the statute of limitations was not well 
taken. It may be weU doubted whether under our acts of as- 
sembly any incorporated company can set up the statute of 
limitations against a stockholder's dividends. It certainly can- 
not ba dona until after a demand and refusal, cr notice to a 
•narefiolder that his right to dividends is denied. But here, so 

IM WooDBma v. Forks Towhship. [Pemu 

tax from such notioe haying been given, the company recognize 
the plaintiff's right to the dividends, and daim to have applied 
them to his use. The statute can have no place in such a de- 
The judgment is revened, and a ventre de novo aivarded. 

Ebtoppkl bt Silbnos, Misbbfrbssntation, OB CoNCBAUfBiiT: See nvf 
^ Afone, 63 Am. Dec 606, and caaet in note 670; BeoMpkmd t. McKem, 
ante, p. 116. 

Batdioatiov or Uvauthobizbd Acts or Agbbot, what oonstitate, aid 
eflfeot of silenoe m: See Flemnwng v. Marine Ins. Oo,, 83 Am. Dec. 33, aoiA 
OMes in note 86. The principal case is cited to the point that eilenoe of the 
party affected by the acts, with knowledge of what has been done for him, 
amoonts to a ratification of the nnaathorised acta, in Haggerty t. Judaif^ 58 
Ind. 158; Majuey v. Itmtranee Co., 8 Phila. 202; London S 8. F. Soc r. Ha- 
Oeniown Bank^ 86 Pa. St. 603; Hall v.roimefi, 49 Id. 46i.- 

Whbbb Cladc is not Patablb uhtil Dbkahd, the itatate of Umita- 
tiona does not commence to run until each demand: Okrard Bamk v. Pt 
TomMp Bank, 4 Phila. 106. 


[28 P muwil tajiu. Buaas, S6S.] 

Owhbb or Land thbouoh Which Pdbuo Boad Buns may ont a 

acron the road for the porpoee of draining his land or la«iii«g water to 
his miU, because the land is his own; but in so doing, he must not injurs 
the public easement, and to preserve it, must construct bridges over such 
ditches where they cross the road, and must keep the same in repair. 
And a subsequent owner who continues such ditches is bound by such 
duties, and liable for repair of such bridges. 

Pboobbdinos bt Indiotmbnt, and roB Statotobt Pbnaiat idb Obstbuct- 
INO Public Boad, are designed more as punishments for offenses than as 
remedies for the injury, and will not preclude the public from repairing 
the road in the first instance, and then bringing actions to recover the 
cost thereof from the party bound to make repaixi 

Township Making Bbfaibs to Public Boad may sue the owner of the 
adjoining land who is liable therefor, notwithstanding the work waa 
done on the credit of the township, and was not actually paid for at the 
time of suit brought. 

Wbmxe Suit was Obioinallt Bbouobt bbtobe JusnoB or Pbagb, and 
on appeal the parties went to trial without objection, on a dedantion 
for " money had and received," all objections to the form of action d 
jurisdiction of the justice are considered as having been waived. 

Ihdebtitatdb assumpsit to recoTer the cost of repairing cer- 
tain bridges. The defendant was a mill-owner. - His predeces* 
Bors in interest in such mill had dug ditches across the public 

1867.] WooDBiNO V. Forks Towhship. 185 

coad adjoimng the mill for the purpose of oonductiiig WEter to 
the mill, and had placed bridges oyer such ditches and kept 
ihem in repair. The defendant, however, failed to keep the 
bridges in repair, and the township, being bound to see that 
the roads were in good order, therefore repaired such bridges, 
and now brings this action to recover the cost of snch repairs. 
The farther facts appear in the opinion. 

Oreen, tar the plaintiff in error. 

J. IL Fcrter and IL Chepp^ tcft the defendant in eocror. 

By Ctonrt, Lawis, 0. J. There is no act of assembly anthor- 
iang the court of common pleas of Northampton coonty to enter 
jadgment ¥wn cUmUnUe veredUiOt on a point of law reserved at 
the triaL But as the judgment is to be reversed for error in 
the eolation of the point reserved, it is not necessary to decide 
the question whether such a judgment can be entered without 
an act of assembly conferring the power. 

We are to take it as settled by the verdict that the two public 
highways were in existence before the mill-races were dug across 
them; that the said races were dug for the benefit of the mill, 
by the former owner of it, and that they are continued by the 
defendant below for the same purpose. We are also to assume 
that the bridges have heretofore been kept in repair by the former 
owners of the milL From these facts, an agreement to keep 
them in repair may be implied. A man who owns soil on 
which the public have a highway has a right to enjoy his prop- 
erty in every way that may promote his interest or convenience, 
so that he takes care not to injure the public easement. Sie 
utere too ui alienum non lasdas, is the maxim which applies in 
such cases. He may cut a passage across the road for the pur- 
pose of draining his land, or leading water to his mill, because 
the land is his own, and he may use it for all legitimate purposes. 
But as he has no right to injure the public easement, heis bound, 
in order to preserve that right, not only to construct bridges 
over the ditches where they cross the highways, but also to keep 
them in repair. The duty of keeping such bridges in repair is 
as imperative as the orighial obligation to construct them. He 
could not be permitted to cut the ditch without erecting the 
bridge. He is bound to keep the bridge in repair, ** because he 
erected it for his own benefit." Pur ceo que U ceo eredpar eon 
benefit demeene: Botobridge and Channel Bridge v. Le Prior de 
Stratford, Temp. 8 Edw. 11. , cited in Boilers Abr. 863, tit. Bridges ; 
Perley v. Chandler, 6 Moss. 454 [4 Am. Dec. 159]; Dygert v. 

186 WooDBiNG V. Forks Township. [Peim. 

Schenok, 28 Wend. 4M [36 Am. Dec. 576]. It follows from these 
principles that a sabaequent owner of the land, who continued a 
watercourse across a highway, for the use of his mill, and thus 
renders a continuance of the bridge necessary, is liable for the 
repairs of the bridge. There was, therefore, error in giving 
judgment for the defendant on the point reserved. 

The act of the sixth of April, 1802, 8 Smith's Laws, 612, im- 
posing a penally for committing a nuisance in the highway, has 
never been construed to supersede the punishment by indict- 
ment at common law: KeUy v. OommonweaUh, 11 Serg. & B. 345. 
The act of thirteenth of June, 1886, sec. 68, expressly preserves 
the latter remedy in addition to the other. But those proceed- 
ings are designed more as punishment for offenses than remedies 
for the injuries caused by them. They do not, therefore, preclude 
the public from repairing the highway in the first place, and then 
bringing an action to recover the expenses of such repairs against 
the party who is liable for them. It is the duty of supervisors to 
keep the roads and township bridges in repair. The public in- 
terest requires that this duty be promptly performed. The peo- 
ple are not to be obstructed in their right of passage until the 
termination of litigation with a wrong-doer. The obligation to 
keep the roads and bridges in repair gives the township a right 
of action against all persons whose neglect of duty has rendered 
the services of its supervisors in this respect necessary: FoitS' 
viUe Borough v. Norwegian Toumshyj, 14 Pa. St. 643. It is not 
necessary that the township should prove that the expense of 
the repairs was paid before suit brought. It is sufficient that 
the work has been done on the credit of the township. The 
defendant has nothing to do with the question whether the town- 
ship has been able to pay its debts or not. A stranger, who is 
tmder no obligation to repair the bridges, could not recover 
from the defendant for expenses voluntarily incurred. The 
creditors of the township, for work done at the request of the 
supervisors, are strangers and voluuteers, so far as regards the 
defendant below. They could maintain no action against him 
for these services. He may therefore feel perfectly safe in pay- 
ing the just demand of the township. 

But it is supposed by the defendant in error that the form of 
the action, and the want of jurisdiction in the justice, present 
objections to the plaintiff's recovery. It must be remembered 
that when the cause came into the common pleas, by apx>eal, 
the parties went to trial without objection, on a declaration for 
"money had and received," without any regard to the true 

1857.] Llotd u LTHca 137 

uature of the action. Such a proceeding is a waiTer of all 
objectionB, either to the form of the action or to the jurisdiction 
of the justice. It is in the nature of an amicable action, with 
an agreement to waiTe all such questions, and to try the case on 
its merits. 

We peroeive no reason why the plaintiff in error should not 
have judgment upon the yexdict. But as the defendant below 
may have grounds for a writ of error, we do not enter the final 
judgment against him here; but rererse the judgment for the 
defendant below, and remit the record for UxrOiet proceedings 
according to law. 

Judgment rereirsed and procedendo awarded. 

OwNsR ov Lavd Anjonmio Hiorwat mat Cut Ditob Acaoes Boaa, 
bat if ha do so^ he mmt^ by bridging or otherwin, make the highway wA 
for tiaTel, as before: Difgert ▼. Sehmck, 85 Am. Deo. 575; PheBuksMe ▼. 
PkoBmx Iroh Co,, 45 Pa. St. 137, eiting the principal oeae. 


est railing them: Stamar v« Nan^ 3 Grant Cai. 241, citing the prindpal 

Llotd v. Lynch. 

[98 FBnnn.TAax4 Buam, il9.] 

PraoiusB VT Tehaiit ih Commoh or OuTsraimnro Tirui imme to benefit 
d all bis oo-tenaata. 

TmaiiT XH Commoh oamhot Aoqvibx iHDxrasnxar Tnui ▲oanrsr ma 
Co-TBiiAHT8» where the land held in Joint tmamcj is eold at a treaBnrer'B 
Mle for non-payment of tazee, by taking an aMignment of the pnirh>eer*i 
deed before the time for redemption has ez|ared. 

tKon IS iroT Cbsatbd nr Fator or Son or Ynmn or Lahd by a mere 
deektfation of the Tendee, at the time of making the porohaee, that '* he 
waa going to boy the buid for hie eon," if there ii no farther proof of 
any agreement to do eo, nor any evidence that the eon famished the 
money to pay for itb 

BaOTAii m DxBD or Patxxnt or PuaoBAsa Movar it no evidence of the 
fact of its payment ai against third persons. 

Pastt GLAmnro as Bona Fms PuaosAsaa loa Valuabui CoNsmaaA- 
Tioii Pass withont notioe of a trost^ most affinnadTely pcove the pay- 
ment of the oonsidstation hy other evidence than the laoslpt apon the 

EjzoiiBBT. The faoti aie stated in the cpinioiu 
HcffiuB, for the plaintiff in error. 
Blatr. for the defendant in error. 

188 Lloyd v. Lynch. [Penik 

By Court, Lewis, 0. J. On the seventh of October, 1841, 
James Boss and Peter Collins, being then the owners of the land 
in controversy, entered into a written contract to convey it to 
Barnabas Farrel, in consideration of the sum of three hundred 
and seventy-five dollars. The sum of one hundred and sixty- 
eight dollars was paid by Barnabas Farrel at the execution of the 
article. The residue was to be paid in installments, the last of 
which became due on the first of May, 1843. Barnabas Farrel 
died on the twenty-fourth of October, 1841, leaving three chil- 
dren, Thomas, Catharine, and Elizabeth. This ejectment was 
brought to recover the share which descended to Catharine as 
the heir of her father. 

The defense is founded on a conveyance of the seventh of 
February, 1844, by James Boss and Peter Collins to Thomas 
Farrel, on his securing the unpaid portion of the purchase 
money due on the contract; a treasurer's deed of the twenty- 
second of August, 1846, to John Armitage, for taxes assessed 
for the years 1844 and 1845; an assignment of the last-men- 
tioned deed by Armitage to Thomas Farrel on the ninth of De- 
cember, 1846; and a conveyance from Thomas Farrel to Gilbert 
L. Lloyd on the first of July, 1854. Peter Collins testifies that 
when Barnabas Farrel was looking at the land, before the con- 
tract was made, he said he was ''going to buy it for his son," 
and adds that that was the reason why he and Boss ** made the 
deed to Thomas Farrel " several years after the death of Barna- 
bas Farrel. This evidence is in conflict with that of James 
Boss; but, taking it for truth, it is entirely insufficient to create 
a trust in favor of Thomas Farrel. There was no evidence that 
the hand-money paid at the execution of the contract be- 
longed to Thomas Farrel. On the contrary, the evidence is 
that Barnabas at that time declared that he '' had money enough 
to pay for it;" that he had '' money from Spang's works." He 
took the contract in his own name. The mere declaration of a 
vendee that he intends to buy for another, without evidence of 
any previous agreement to do so, or of any advance of money 
for the purpose, raises no trust which can be supported in 
equity: Robertson v. Bobertson, 9 Watts, 32; Sidle v. WcUen, 6 
Id. 391; Bear v. Whisler, 7 Id. 147. 

Thomas Farrel, on the death of his father, became a tenant 
in common with his two sisters. Independently of his duty as 
a brother, his obligations to his sisters, as a tenant in common 
with them, required that any title which he might obtain to Ihe 
premises should inure to the benefit of all. This principle of 

1857.] Llotd v. Ltnch. 139 

law giT68 to an the liein of Bomabas Faml the benefit of the 
two deeds aoqniied hj one of them for the premises held in 
eommon: Van Hotm y. FondU^ 5 Johns. Ch. 408; Smiley y. 
Dixon, 1 Pa. 439; Weaver v. Wible, 25 Pa. St 272 [64 Am. 
Dec. 696]. Those deeds can only be used as a securi^ to en- 
force contribution for the money paid for them. 

Bnt it is alleged that Gilbert L. Lloyd is ^ purchaser for a 
ndnable consideration paid, withont notice of the rights of the 
plaintifEa below. He gave no eridence whaterer of the payment 
of the purchase money, except the receipt on the deed from 
Thomas Parrel of the first of July, 1854. That receipt is un- 
doabtedly eyidenoe of payment against Thomas Parrel himself, 
and all who subsequently deriTe titie from him. It is also evi- 
dence to pass the right of Thomas Parrel, whateyer it was, at 
the time. But it is no eridence whatever of the fact of pay- 
ment against a stranger, or even against one who derived title 
from Thomas Parrel previously to the date of the conveyance to 
Lloyd. Against them it is nothing but hearsay. It is a mere 
tg parte declaration not under oath, taken vrithout any oppor- 
tmiiigr to cross-examine. It has been long settled that such 
declarations are not evidence against strangers. It is upon this 
principle that an indorsement by the payee of negotiable paper, 
altiiough sufficient evidence to pass his right and to enable the 
holder to maintain an action in his own name, is entirely insuf- 
ficient to show that he paid a valuable consideration for it, so as 
to exclude a defense which would be otherwise available: Holme 
V. Karsper, 5 Binn. 471; BeUzho&ver v. BlackfUock, 8 Watts, 20 
{27 Am. Dec. 880]. It is upon this principle that the receipt in a 
deed is not evidence of payment of the purchase money against 
creditors who attack it by evidence tending to show that it was 
made to defraud them : Clark v. Depew, 25 Pa. St. 515. It is upon 
this principle that it has been constantly held that the declara- 
tions of a grantor, after he has parted with his interest, are 
not evidence against his grantee: Packer v. Oonaalea, 1 Serg. ic 
B. 526; PaUon v. Ooldsborough, 9 Id. 47; Babb v. Clemaon, 12 
Id. 828; Hoffman v. Xee, 3 Watts, 852; McCuUoch v. Cowher, 5 
Watts & B. 427; Gregory v. Griffin^ 1 Pa. St. 208. It is on this 
principle that it has been repeatedly held that receipts of third 
persons are not evidence of payment of money, unless those 
persons are either officers of the law or agents of the parly 
against whom they are offered: CiUlmeh v. OHhert, 4 Serg. & B. 
S65; Morion v. Morion, 13 Id. 108. On the same principle, it 
Vrv heen a hundred times decided that recitals in deeds are not 

140 Llotb v. Ltngb. (Penile 

evidence of the facts ledted agamst Btrangers or persons who- 
derive title from the grantors before the execution of the deeds- 
containing such recitals: Penrose t. OriffUh, 4 Binn. 231; Oar- 
wood Y. Dennis, Id. 827; Dean t. Connelly, 6 Pa. SL 239; Fcfn^ 
tea y. Spencer, Id. 254; SiliMeUT. Michael, 3 Watts & S. 332. It is^ 
on this principle that the rule in chancery practice requires that 
the plea of *' purchaser for a valuable consideration '* should dis- 
tinctly aver that the consideration money was bona fide and 
truly paid, independently of the recital in the purchase deed: 2 
Daniell's Ch. Pr. 201. Although the courts in this country may 
not adopt all the rules of practice in the English chancery, they^ 
are governed by the same equity principles, and enforce them in 
some form. Chancellor Desaussure, in speaking of this plea, has- 
very properly held that its substance must be regarded in ad- 
ministering equity; and that it must be averred that the pur- 
chase money was ** bona fide, truly, and actually paid:" Snd' 
grove v. Snelgrove, 4 Desau. Eq. 286. No new principle was* 
announced when it was held that the receipt in the deed of 
purchase is not evidence to support this material averment 
against any persons except parties to the deed, or persons who 
subsequently derive title from the grantor. This application of 
a very familiar rule of evidence was fully sanctioned in Union 
Canal Company v. Toung, 1 Whart. 432 [30 Am. Dec. 212]; 
nogere v. EaU, 4 Watts, 862; BoUan v. Johns, 5 Pa. St 151 [47 
Am. Dec. 404]; and Henry v. Batman, 25 Id. 360. A receipt 
for the purchase money at the foot of the deed has been held to- 
be " evidence of the lowest order," even against the party sign* 
ing it, because it was " every day's practice to have such a- 
receipt " on the deed, ** when perhaps nine times in ten there was 
not a shilling paid : " EamiUon v. McOuire, 3 Serg. & B. 856. If 
such evidence were received against strangers for the purpose of 
extinguishing their equitable rights, the salutary rules estab- 
lished for ages would be subverted; hearsay evidence would be- 
Bubstitnted for testimony under the sanction of an oath, and aU 
the advantages of a cross-examination would be swept away. 
Under such a system, no equitable tiUe could be protected. But 
it is urged that there is a presumption that the grantor and 
grantee have acted with integrity. This may be so; but that is 
no reason why their declarations should be given in evidence* 
against persons who have no connection with them. If they 
are acquainted with material facts, they are as much bound to 
deliver their testimony under oath as other persons, if competent 

1857.] Lloyd v. Lyxcu. 141 

iritneaaeB. If interested, neither their declarations ncr their 
testimony can be reoeived in their own favor. 

But the rejection of a receipt signed bj a stranger implies no 
impatation of dishonesty in the party signing it. It is always 
-signed whenever a conveyance is made, and proves nothing fur- 
ther, even against the grantor, than that he has either received 
the purchase money or has taken security for it. Taking secu- 
rity for it is no payment which would defeat a prior title. Bona 
fide payment is an affirmative fact peculiarly within the knowl- 
edge of the party making such payment or claiming advantage 
from it. It is therefore easy for him to prove it While, on 
the other hand, the opposite party, who is a stranger to the 
transaction, might have insuperable difficulties in proving a 
negative. It is against all the reason and life of the law that 
such a burden should be imposed upon him. 

It follows from this view of the case that Gilbert L. Lloyd 
stands in no better condition than Thomas Farxel, and that the 
court was correct in giving a positive direction in favor of the 
plaintiffs below. This disposes of the whole case. 

Judgment affirmed. 

PuBCHAflB BT OR OomnBrAXOB TO On ov SivsBAL Oo-niTAim or 0UT> 
wiAWDtSQ Trlk inures to benefit of all the tenante In oommon: Weaver v. 
IFiUe, 64 Am. Dea 096, and note 608; TisdaU v. Ttadak^ Id. 775, and note 
784; MandeoiOe v. Sohnum, 80 CU. 183; Nodr. WhUe, 87 F^ St. 625; the 
two laat 4^ting the principal case; and tiie rale will apply to a poxehaae by 
the tenant at tax sale: Bender v. Stewart^ 75 Ind. 01. 

Trust d hot Crratrd bt Mcbr DiOLARATioir ov VmrDSR at the tale 
that he porohaaed for another withoat farther proof: WUktrd r. WiUard, 56 
Pa. St. 125, citing the prindpal caae. The principal oaae ia also cited on this 
point in Farrdl v. l^cyd, 60 Id. 246, which was a case arising oat of the same 

RicrEAL nr ThOD ov Patmiiit ow Puboiiasb Monkt, Bwiot or: See 
Hammtmd v. Woodmtm^ 66 Am. Dee. 210; Wood v. Ohapm^ 67 Id. 62, and 
cases in note 74, 75; the recital is condosive as against the grantor and any 
daiming ander liim, bat not against strangers: Penmylvania 8aU MJg. Co. 
▼. Ked^ 54 Rl St. 18, citing the principal case. 

Pabtt CLAmnia as Boha Fidb Purohasbr without Notior, and for 
a valaable consideration, mast affirmatively prove the payment of the con- 
sideration by other evidence than the receipt npon the deed: Whdan v. Me» 
Crear^^ 64 Ala. 828; Monei v. Swi/t, 15 Kev. 224; Be^l/UUL S B.M.Co. v. 
Dyaark 62 Fa. St. 66, all citing the principal 

142 Haldeman & Qrubb v. Bank of Middletown. [Peniw 

Haldeman & Gbubb v. Bank of Middletown* 

JhaamrufAJKU, Statb, iiO.] 

Thb Fact that Draft Drawn bt Firm is Patablb to Order of One 
Partner, and by him indorsed, is not evidence that it was not drawn hy 
the firm in the nsnal coarse of business. 

Presumption is that Drawing or Draft or Bill in name of firm by 
one partner, and offering the same for diKwont, is a partnership transac- 
tion, even though the draft or bill was made payable to the order of one 
of the members of the firm. 

Presumption that Drawing of Draft in Firm Name and discounting 
It was a partnership transaction is not affected beoaase the paper was 
discounted at the request of the partner who drew it in the name of the 
firm, and whose name was inserted as payee^ and who indorsed it and 
drew the proceeds. 

Actual Knowledge that Negotiable Paper was Given wiraour Con* 
SENT of certain partners is a good defense to the non-oonsenting partners^ 

Note of Firm Given for Private Debt of One Partner is Good 
against the firm in the hands of a Uma fidt holder; the right of the indi- 
vidual partner's creditor depending, however, on the consent of all the 

In Action against Firm on Nbgotiablb Paper Drawn and Diboountir 
bt Partner in Name of Firm it is not error to reject evidence show- 
ing that the partner having the paper disoounted appropriated the pft>> 
coeds to his own use. 

In Action against Partnership, Evidbnoi havino No Tinbknot to 
Disprove Existence of Partnership, as that the partners held the 
real estate used in their partnership transactions as tenants in common, 
or that the counsel of one of the partners advised him not to enter into 
the partnership, or that the partner having the paper diseoonted did not 
pay over to the other partner his proportion of the profits of the oon- 
cem, is not admissible for that purpose. 

Debt against partners on a bill of exchange. The facta are 
stated in the opinion. 

EXxne^ for the plaintiff in error. 

Farhe and Eaeelhursi, for the defendant in error. 

By Oourt, Enoz, J. Peter Haldeman and Edward B. Grubb 
were partners in manufacturing iron at the Henry Olay furnace 
in Lancaster county, from June, 1858, to November, 1854. On 
the twenty-first of October, 1854, Peter Haldeman, in his own 
name and that of his partner, E. B. Grubb, made a draft for six 
thousand dollars at sixty days, directed to Haldeman Brothers, 
Philadelphia, payable to the order of Peter Haldeman, and by 
him indorsed. The draft was discounted by the Bank of Mid- 
dletown, and the proceeds paid to Peter Haldeman. It was pro- 
wasted for non-payment, and this suit was brought by the bank 

1837.] Haldxbun & Obubb u Bank of MmDLEiowN. 143 

againBt Haldeman & Ghnbb to xeeoTer the amount due and 
unpaid npon the diaft. 

Edward B. Qnibb defends, upon theground that the draft, 
although in the name of Peter Haldeman and himself, was reallj 
made by Haldeman for his own use, and that the proceeds were 
not used in the business of Haldeman & Grubb, but were ap- 
propriated by Haldeman to his indiyidual purposes. The case 
depends upon the question whether the bank was bound to in- 
quire as to the authority of Haldeman to draw the draft in the 
firm names. It is not pretended that the bank had actual no- 
tice that the discount was for Haldeman's separate use; but it is 
alleged that the form of the draft was sufficient to put the 
bank upon inquiry. The draft was made payable to Peter Hal- 
deman's order. Was this an indication that it was not drawn 
by the firm in the usual course of its business? Certainly it was 
not; for although it may not be the ordinary form in which bills 
are drawn, it is by no means an unusual transaction, when the 
object of drawing a draft is to raise money for a firm that it 
should be made payable to the order, and indorsed by one of 
the members of the firm. The hiw merchant, founded as it is 
upon the usage and custom of merchants, should conform to the 
bosiness habits of the people where it is to be applied, rather 
than compel the business conmiuniiy to follow arbitnoy rules 
not in conformity with the common understanding of business 
men. Where a draft or bill, drawn in the name of a firm by one 
of the partners, is offered for discount, the presumption is that 
drawing ^the draft was a partnership transaction, even although 
it was made payable to the order of one of the members of the 
firm. Actual knowledge that a bill or note, purporting to be 
drawn or made by a firm, was given without the consent of some 
of the partners, is a good defense as to the non-consenting part- 
ners; but the presumption that the paper is what it purports to 
be cannot be overthrown upon a mere matter of form in insert- 
iiig the name of one of the members of a partnership as payee. 
Where a firm note is given for an individual debt, the person to 
whom the debt was due is affected with notice that the note was 
not given in a partnership transaction, and therefore his right 
to recover from the firm will depend upon the assent of the part- 
ner or partners, other than the original debtor. But such a 
note would clearly be good against the firm in the hands of a 
bt/iiajide holder. 

It is unnecessary to review the authorities cited by the plain- 
iiira in error. It is sufficient to say that none of them sustain 

144 Haldebcan & Qrubb v. Bank of Middletown. [Penu. 

the position that the form of the draft was notice to the bank 
that it was not drawn for partnership purj>08e8. The free cir- 
eolation of mercantile paper is essentially necessary to the qroo- 
perity of the business public, and all defense made against it 
which is not clearly founded upon principles of substantial jus- 
tice should be disregarded. If the paper is fraudulently put 
into circulation, let him who has actual knowledge of the fraud, 
or who has been grossly negligent in obtaining such knowledge, 
be affected by the fraud; but if notice is to be implied from the 
name of the payee in the bill or note, other implications of 
equal or greater weight will be made from other causes; and the 
end would be that no one would dare take a note or bill without 
first taking the advice of counsel learned in the law merchant. 
In the case at bar, when the draft was offered to the bank for 
discount, it was accompanied by a letter from Peter Haldeman, 
in which he expressly stated that the money was wanted for the 
Henry Clay furnace, in which he and Grubb were jointly inter 
ested. Instead of having notice that this was not a partnership 
transaction, in addition to the presumption arising from the 
names of the drawers, the bank was expressly told that the 
money was wanted to pay partnership debts. We do not think 
that ihe letter referred to was necessazy to the plaintiff's case, 
but it certainly did not weaken it. That the draft was dis- 
counted upon tixe request of Haldeman, and the proceeds paid 
to him, is entirely immaterial, for which we have the authority 
of Lord Eldon in Ex parte BanbonuSy 8 Yes. 642, and Chief Jus- 
tice Gibson in Tanner v. J9a22, 1 Pa. SL 417. It is difScult to 
distinguish this case in principle from that of IhtMen v. Neg- 
ley, 25 Id. 297. There the note in suit was made by Negley & 
Mohan, in the handwriting of James S. Negley, payable to the 
order of James S. Negley, and indorsed by James S. Negley, 
and by Negley, Mohan, & Co.; which indorsements were in the 
handwriting of James S. N^ley, who was a member of the firm 
of Negley & Mohan as well as that of Negley, Mohan, & Co. 
The suit was against Negley, Mohan, fc Co., and it was the 
unanimous opinion of this court that there was nothing suspi- 
cious upon the face of the note, and that a bona fide holder was 
entitled to recover against Negley, Mohan, & Co. It is to be 
observed that the note of Negley & Mohan was made payable to 
the order of James S. Negley, and by him indorsed; now if this 
was sufiScient to have put the purchasers upon inquiry in favor 
of Negley & Mohan, it would surely have had the same effect 
in behalf of Negley, Mohan, & Co. , for James S. Negley had the 

1857] Babto v. Schmxck. 145 

mm» aotharity to sign the namas of the oae ftim as maksn as 
he had to indorse ihe note in the name of the other firm. Had 
the soii been against the firm of Negley & Mohan, that ease and 
the one in hand would have bean identical in fact as thej now 
era in prinelple. 

From what has been said, it follows that there was no eiror in 
rejecting evidence that Haldeman had appropriated the money 
to his own nse.and that the statements made in his letter to the 
cashier of the bank were not tme. It likewise follows that the 
instmctians given by the coort of common pleas to the jaiy 
were coizect. Neither was there enor committed in rejeoting 
the oflbr to prove by Mr. Penrose that the purchase of the real 
estate was made by Haldeman & Ghnbb as tenants in com- 
mon, and not as partners; and that he adviwd Ombb not to 
enter into a partnership with Haldeman, and that Haldeman 
did not pay over to Ghrabb the one half of the profits. This 
offered evidence did not tend to disprove the partnendiip, and 
was therefore properly rejected. 

Judgment afBrmed. 

PABssxa's Fowxa to Bnn> Fibm bt NsoonASUi Issra oMS Bnp diawa 
bj him In firm name: See Cfreder v. Kirker, 51 Aol Deo. 724; HamOtam v. 
AassMre, 64 Id. 500. Ooatnwti made In the firm neme will be pieeamed to 
betethe films Jib«g v. Oiyifi, M Fk. St. S40^ oitiag the frfaeipsl erne. 

Babxo v. 

ii:i I 

[M PanRLTASu Soun, 4ir.) 

IsBoma ov Non bbiobs Hsootiatiov nmsaof ar Fatis k lisUe to 
Ibe payee if it esn be proved that the object of the ladoneBMBt wis 
to give the maker of the note eredit with the payee; aad on ptoof of 
•ooh fMct, the indocaer would be UaUe In a aimUar manner to the in- 
doTMO of the payee, and either may write over each indoieer'a iigiiatiire, 
an agreement coneip o nding witb aaoh faoti. 

Is Abbbncb or BxTBoraio Paoor to Chabox laaaeiTLAa IvDOsssa, bit 
liability la meaaored by bia indonemeat idlelyt aad he la not liable to 
the payee at all, and only Uahle to aobeeqnent Indoffeeea by the payee 
amsmins the poaition of fknt Indoner, and negotiating the note on the 
credit of all the partiae to it. 

Afla[iOH on promissoiy note. The facts are slatsd in the opin- 

McKenty^ for the plaintjif in error. 

BtmkB and Van Beed, for the defendant in enor* 

Am. Om. Vou LXX— le 

14G Barto v. Schmeck. [Penii. 

Bj Court, WooDWAEDy J. The plaintiff sues as indorsee of a 
note negotiable on its face; but the defendant whom he sues^ 
not an original party to the note, appears to haye indorsed it 
before the payee indorsed it to the plaintiff. Such an indorse- 
ment is out of the usual course of business, and makes the 
paper what was called in Leech v. HiU, 4 Watts, 449, " an anom- 
alous instrument.*' 

Undoubtedly the indorser meant to pledge his responsibility 
for the payment of the note — but how? 

If he meant to be bound to the payee, as surety or guarantor 
for the maker, the plaintiff was bound to prove the agreement, 
or circumstances from which it might be fairly inferred. And 
to prove it by extrinsic evidence — ^not by the indorsement 
merely, because that, being out of the usual course, cannot im- 
port either a guaranty or suretyship. 

And when a party has evidence to define and explain such an 
indorsement, he may recover upon it as on any other cause of 
action which rests in parol. 

But in this case there was no evidence ezplanatoxy of the in- 
dorsement. The question therefore is. What does it, of itself, 
and unaided by extrinsic proof, import? Simply that the de- 
fendant meant to stand as second indorser after the payee. 
This is the doctrine of the cases as examined and declared in 
Taylor v. McCune, 11 Pa. St. 4GG, and as repeated lately in this 
court in the cases of SchoUenberger v. Nel^, 28 Id. 189, and 
Fegenbuah v. Lang^ Id. 193. In Kyner v. Shower, 18 Id. 444, 
Chief Justice Qibson referred himself with approbation to 
Taylor v. McCune, supra; but in stating the substance of that 
case, not then reported, he erroneously imputed to it the doc- 
trine that where there is no evidence to explain this anonudous 
kind of indorsement, the indorser '* authorizes the payee to 
write over his name any form of engagement he may see 

It was this observation that manifestly misled the learned 
judge below into deciding that, there being no evidence to ex- 
plain Barto's indorsement, he was bound to meet any form of 
engagement the payee might see fit to write over his name. 

An examination of Taylor v. McCune, isuprat will show that 
no such proposition was affirmed, but that the ruling was to ex- 
actly the contraiy effect, though the syllabus of the case proves 
that the reporter misapprehended it, not, indeed, in the same 
manner as Judge Gibson, but quite as essentially. 

It was a suit by McCune against Taylor on an indorsement 

1857 ] Bakto v. Schmeck. 147 

made by the latter of a promiasoiy note of Alexander Shuri to 
McCune, at six months. On the trial, evidence was given to 
explain the purposes of the indorsement, and the judge of the 
district court of Alleghanj instructed the jury that if thej be- 
lieved the informal note was given by Short and Taylor to 
secure the plaintiff for the amount due to him, the note was to 
be construed according to the tmderstanding of the parties. 
The jury did so believe, and the plaintiff had the verdict and 
judgment. When it came into this court, Judge Bell reviewed 
the cases on the subject of these informal indorsements, and 
declared that in all of them the event was made to depend on 
the express undertaking of the defendant as surety, *'mani* 
fasted, not merely by his irregular indorsement of the note, 
bat by evidence aliunde;*' and then he proceeded to show that 
the extrinsic proof in the case failed to establish Taylor's liabil« 
ity; that the legal presumption, from the mere indorsement, 
was, that Taylor intended to stand as second indorser, and con- 
cluded by reversing the judgment in these words: " There was 
no sciniiUa of proof of an understanding of the parties, differ- 
ing from that to be drawn from the instrument itself, and con- 
sequently the plaintiff was not entitled to recover." 

Such is Tdylar v. McCune, gupra; and the two propositions it 
establishes, and which have been enforced in the recent cases 
already referred to, may be stated thus: 

1. That where a third party indorses a negotiable note before 
the payee has negotiated it, he is liable to the payee if it can be 
proved that the object of the indorsement was to give to the 
maker of the note credit with the payee. And it is a fair infer- 
ence from this proposition that on proof of such an understand- 
ing the indorser would be in like manner liable to any indorsee 
of the payee, either of whom may write over the signature of 
the indorser an agreement corresponding with the facts suscepti- 
ble of proof. 

2. But where there is no extrinsio or collateral proof to charge 
such an irregular indorser — ^where his lialnliiy is to be measured 
solely by the fact of indorsement, he is not responsible to the 
payee at all, and becomes responsible to a subsequent indorsee 
only by the payee's assuming the position of a first indorser, 
and then negotiating the note on the credit of all the parties 
to it. 

The cases of Leech v. ffiU, 4 Watts, 449, Kyner v. Shower, 13 
Fa. St 444, and SchoOenberger v. Nehf, 28 Id. 189, illustrate the 
first of these propositions, and Taylor v. McOune, 11 Id. 406, 

148 Babio u Schmbck. [Ften. 

and tbgmitnuk r. Lang^ 28 Id. 198, are illasiiniiioiiB of the sqo- 
oBd. There is no diffiooliy in dasei^Ting the ease before na. 
It belongs to the second proposition. 

There was no proof to chaxge Bartowith liafailitj to tfaepayipe, 
and he could be made liable to Schmeck as a sabseqnent hairier 
only by the payee's assnining the reeponsibiliiy of a first in- 
dorser. Barto most be presomed to have come upon the note 
as second indorser, with the ezpeetaiion and understanding thai 
Mannerback should be first indorser before it should be nego- 

It was a fraud on Barto, therefore, for Mannerback to indorse 
below him, and to negotiate the note to Schmeck, without him* 
self aswiming the responsibiliiy of a first indorser. And Sohmeek 
took the note with his eyes wide open to the fact that l£anner- 
back was the payee, and could not regularly be second indorser. 
This was a oiicumstance sufficient to discredit the commercial 
character of the paper, and to put Schmeck upon inquiry for 
the collateral agreement which could alone entitle him to charge 
Barto as first indorser. The defense, therefore, is just as avail- 
able against Schmeck as it would have been against Manner- 

Barto is liable to neither — ^not to Mannerback, because hia 
mere indorsement imported in law no liability to him; nor to 
Schmeck, because in taking the note without Mannerback on it 
as first indmraer, he deprived Barto of that recourse to Manner- 
bach which he was entitled to have, and without which, it is 
&ir to presume, he would not have indorsed the paper. 

The judgment is reversed, and a venire de novo awarded. 

FiBSov Wamiia Kaxi on Back or Koxs asposa DmxfmaswTO Fai 
oa BifOBS Kbqotxatiov bt Him, extent of Uebflity of: See Leioit v, Hmt- 
vey^ 60 Am. Deo. 286, and note 202, dting prior ofeses; Cook t. SoMwick^ 00 
Id. 181; Wright r. Motm^ 60 Id. 201. The principal oaee ii cited to the prop- 
ocition that eoch indorser ie liable to the payee on proof that the object d 
hie indonement waa to give the maker credit, bat that in abeanoe of each 
proof he is liable merely as an indorser after the payee, in Qmkh v. JTecsCer, 
44 Pa. St. 144; Slack v. Kirk, 67 Id. 384; Schqfer v. Farmer^ md MechamaT 
Bank, 50 Id. 140; & C, 8 Am. L. Beg., K. a, 680; Skenk v. Bobesfm, 9 
Grant 0ml 176; Martk^Y. Dn^ 4 Phila 76; iTotet t. Aimodd, 7 U. 107. 

1857.] CoovEB's Appkax. 140 

Gooveb's ApFBAIi. 

(29 FBomiXtTAnA Btssa^ t.] 
8aui wi FAsma ov his Ibtsbbt or PnooNAii Pfeornsr ov fteM 
pMMB nothing Imt his intersst in the sorplns^ after psjOMnt ol ths part- 
Dsnhip debts. 
FsBnrsBSHiF CasDnoBB Who hatb Ko Linr on Fiucmial Fmanmrw 
OF FiXM have no means of enf orciqg their daun to a p w feric i a in tha 
disiribatum of it; their aqoity is only to be worfcad oni throng thaaqni* 
of the partners themselves, each of whom has a right, while he ezsr- 
dominion over the property, to insist on its application to partner- 
ship daima before it be appropriated to the indiTidoal dobta of the sarend 
partneraL Tlus right may, however, be waired by each partner dii^oa- 
ing off all faia interest in the properly. 
Um AoqunasD bt PAsmBSBip CBXDDOBa ov Jonr AMsn oaraor bs 
DnmMCBD by any sabseqnent dii^MsitkNi of tha p^^ o ^> s l ' ^^y hf tha seraral 

EzaoonoNs abb Isbubd AaAmra iBDirxouAL Pabtvbbs bob Sbp- 
ABAXB DxBTSy AND ALBQ AOAIK8T FiBM foT partnership debti» and by 
agreemeot of the exeoation creditors the firm propeity is all sold at the 
same time, the firm creditors are entitled to pieforenee, and are entitled 
to ail the proceeds where necessary to satisfy their claims, and the rule 
ia the same thon^ the individoal ezeeotions were prior in date. 

Amai. from order confirming anditor^s report Oeriain judg- 
ments httving been rendered against a partnersbip, and other 
judgments rendered against members constitating the firm, and 
eiBoiitions baring been issaed on each judgment, all the execu- 
tion arediton agreed, for mutual oonTenience, that all the firm 
properlj should be sold under all the executions at one sale. 
The property was sold, and under the agreement the proceeds 
were paid into court, and an auditor appointed to make distri- 
bution. The auditor reported a certain mode of distribution, 
which in ^ect was that the claims of the firm creditors be first 
settled in full, and if any balance remain, that it be distributed 
to the indiyidual creditors, in the order of issuance of their execu- 
tions. The report was confirmed, and the distribution so de- 
creed. From this decree the indiyidual creditors appealed. The 
remaining facts appear in the opinion. 

By Court, Lawn, 0. J. If one of seTcral partners sell his 
interest in the personal property belonging to the firm, nothing 
passes but his interest in the surplus, after payment of the part- 
nership debts. Purtnership creditors who hare no lien on the 
personal estate of the firm have no means of enforcing their 
claim to a preference in the distribution of it. Their equity, 
whatever it may be, is to be worked out through the equities of 
the partners themselves, each of whom has a right, while ha 

ISO Oooybb's Affkal. [?enn. 

exereises dominion over the property, to insist on ita application 
to partnership claimBy before it be appropriated to the indi- 
vidual debts of the several partners. But this righlT may be 
waived, and it is waived when each partner disposes of all his 
interest in the property. Sales on separate executions against 
the several partners have the same effect as sales by the indi- 
vidual partners themselves: Doner v. Stouffer, 1 Penr. & W. 205 
[21 Am. Dec. 870]; Baker^B Appeal, 21 Pa. St. 76 [59 Am. Dec. 
752]. But when the joint creditors acquire a lien on the joint 
assets, either by assignment or by levy, no subsequent disposi- 
tion of the property by the several partners, or by their separate 
execution creditors, can defeat such lien. It differs from a lien 
against a single member of the firm in this important particular, 
that the former is a lien on the chattels themselves, while the 
latter is a lien on the surplus only, after payment of partnership 
debts. The lien of the partnerdiip creditors is in time if ac- 
quired before the sale. The moment the equiiy of the partner- 
ship creditors is thus secured, their rights become paramount, 
and no arrangement of the order of sale can give the separate 
creditors a preference over them. It follows that the agreement 
respecting the time and manner of selling on the executions in 
the sheriff 's hands did not change the rights of the parties. The 
partnership creditors were entitied to the proceeds. As the 
sum raised was not sufficient to pay them, there was, of course, 
nothing left for the separate creditors. The opinion of the 
learned president of the common pleas oontuns a ooneot state- 
ment of the law of this case. 
Decree of distribution affirmed at the costs of the appellants. 

Lswis, 0. J. The decree of distribution affirmed in Goover^% 
Appeal, for the reasons assigned in the opinion just delivered, 
disposes of Rex, Silvia, S GoJb Appeal, Henry L. King's Appeal, 
and Mary Dare^s Appeal. 

Decree of distribution affirmed at the costs of the appellants. 


or priorities of, r^arding firm property: See Miller v. Estill, 67 Am. Deo. 305^ 
and TUlingluMMt v. CkampUn, Id. 610, and notes to both cases, dting many 
prior dodsioDs in the series, which cover the subject-matter of the principal 
case. The equities of the firm creditors are to be worked ont through the 
equities of the partners: McNuU v. Strayhorn, 39 Pa. St 273, citing tbr 
principal case. 

Thb pbinoipal 0A8B IS crTCD in Bachu v. Murphy, 39 Pa. St 401, and 
StuoH V. McHenry, 3 Phila. 342, as to the effect of a judicial sale of 
chip efiects at the suit of joint and several creditors. 

1867.] WSAVEB t;. Fegelt. 151 

Weaver v. Fegelt. 

p9 FsnnTLTAnA Ozatb. ST.] 

Two TkomABD Pomnis Atoibdvpois Weight CoiranTon Tov in Ftmi* 
sylvBoia: Jft w wi r. Jfeyerv, 25 Pa. St. 114. 

Ohast nr Fkdbbal Constitdtioh or Powsk to CoiroBMi to BaoaLATB 
Wbobib axd Mxasuxu does not eztingiibh the right of the sUtat (o 
deal with the aune mibjeet nntil oo ngr oe a ahall have exerewed iti power 
inr^^rd thereto. 

Oeaxt ov Pown to Cohokbb ISzcludb Right ov Statb orer sune tab- 
jeci only when the gnuit ie in ezpreis terms sn exdnsire aothority to 
the Union, or where the grant to congress ii ojnpled with a prohibition 
to the states to ezerdse tiie ssme power, or where the grsnt to the one 
wonld be repngnsnt to the ezerciBe of n similsr anthoritj by the other. 

AMHJMjnuT to leooTer the price of oeztain ooaL The sole 
question in dispnte was whether a ton consisted of two tfaoosand 
or two Chonsand two hundred and forty pounds aToirdnpois. 

Banks, for the plaintiff in error. 
IW)eri, for the defendant in error. 

By Court, Lbwis, 0. J. The question raised in this case was 
decided in Evans ▼• Myers^ 26 Pa. St. 114. It was not then 
supposed hy any one that congress had exercised their constitu- 
tional power to fix a standard of weights and measures. In the 
decision since pronounced by Judge Orier, in HoU ▼. Steamer 
Miantonomi, 8 Liv. Law Mag. 698, S. 0., sub nom. The Mianto- 
nomt, 3 Wall. jun. 46, it is fully conceded that they haye not 
hitherto exerdaed that power. The same concession is made 
fay Judge Story in his Commentaries on the Constitution. The 
omission to exercise this power* was in fact made a matter of 
complaint and remonstrance by the legislature of Pennsylvania, 
in their resolutions of the ninth of April, 1884, in which the 
general government was urged to perform this obligation. The 
act of assembly of the fifteenth of April, 1884, is based upon the 
neglect of the federal legislature in this particular, and it is in 
that act expressly provided that whenever congress shall estab- 
lish a standard of weights and measures, the standards named in 
the state law shall be made to conform to the act of congress. It 
is an error to suppose that either the resolution of congress of 
the fourteenth of June, 1886, or the acts of the nineteenth of 
May, 1828, and thirtieth of August, 1842, establish a standard 
of weights and measures to regulate the business transactions 
of the people. The resolution of 1836 was nothing more than a 
preliminary step looking to the exercise of the power at a future 

161 Wkavsb i;. Fbgklt. [F 

day. The act of 1828 had rdation meidj to the opentionB of 
the United States mint; and the act of 1842 was limited ezclu- 
siyely to the oollection of the public revenue, under the tariff of 
that year. There is therefore no foundation whatever for tho 
allegation that congress has exercised this power, and .that there 
is therefore any actual conflict between the state and national 
legisUition on tiiis subject. 

But it seems to be thought by the plaintiff in error that the 
mere grant of the power to congress, although not exercised by 
that body, extinguishes it in the states. This is contraiy to the 
rule of construction adopted by all approved authorities. Alex- 
ander Hamilton, who was not likely to relinquish federal au- 
thority where he could maintain it with any shov of reason, 
states the rule thus: ''This exclusive delegation, or rather this 
alienation, of state sovereignty exists only in three cases: 1. 
Where the constitution in express terms granted an exclusiTe 
auihoriiy to the Union; 2. Where it granted an authority to 
the Union, and at the same time prohibited the states from exer- 
. cising the like authority; 8. Where it granted an authority to 
the Union, to which a similar authority in the states would be 
absolutely and totally contradictory and repugnant." It is not 
pretended that the grant of the power to regulate weights and 
measures is exclusive in express terms, nor that the states are 
expressly prohibited from exercising it. The state sovereignttea 
are therefore to be extinguished as regards this subject, if at all, 
by mere implication. But that implication can only arise where 
the state authority is " absolutely and totally contmdictory and 
repugnant*' to the power delegated to congress. These terms 
necessarily imply the pre-existence of something to contradict 
or oppose. But there is nothing whatever, either in the consti- 
tution or in the acts of congress, which the act of assembly in 
any respect contravenes or opposes. It is therefore perfectly 
constitutional. The true rule in this respect was correctly 
stated by Chief Justice Tilghman, in the celebrated case of Moore 
V. HoujBtony 3 Serg. k B. 179. << Where the authority of the 
states is taken away by implication, they may continue to act 
until the United States exercise their power, because until such 
exercise there can be no incompatibility." The decision of the 
supreme court of Pennsylvania in the case referred to was af- 
firmed in the supreme court of the United States. The frequent 
application of the principle setUed in that case is familiar to all 
persons conversant with the operations of our government. Con- 
gress has power to provide for calling forth the militia, but the 

1S57.] Weavsb v. Feoslt. 153 

stateB oMiy do the aune, ao that their enactments do not 
with the acta of oongieaa: Mxre r. ffouaUm, %upra; Hcutton ▼. 
Moure, 5 Wheat. 1. Congieaa may establiah imifonn bankrupt 
lawB, bat the atatea may exerdae the same power within their re- 
egeotxwe joxiadictiona, ao long aa they do not conflict with exist- 
ing r^^olationa of congreea: Shurges r. CrownmMeld, 4 Id. 123; 
Ogden ▼. Saunders, 12 Id. 213; Boyle ▼. Zaduirie, 6 Pet 848. 
Gongresa may exerciae the taxing power, and ao may the atatea 
exerdae general powers of the like kind. Congreaa have power to 
poniah for connterfeiting the coin, and had power to poniah for 
counterfeiting the notea of the Bank of the United Statea, and the 
states exercised the same power: Ibx ▼. Ohio, 6 How. 432; While 
T. Comaaumwealih, 4 Binn. 418; Livingsion ▼. Van Ingen, 9 Johns. 
267. Cktngreaa may giant exclosiYe priTilegea for litni^o^l timea to 
aothoTB and inyentors. The states did the same until congress 
exerdsed the power: lAvmgsUm y. Van Ingen, supra. Congress 
hare power to provide for the recaption of fugitive shtves. The 
statea faaye the same power so long as their enactments are not 
in conflict with the acts of congress on the subject. It is true 
that this prindple was denied by Justice Story in Prigg t. 
Pennsylvania, 16 Pet. 539. But that opinion waa on a question 
which did not arise in the case. It was one of the most mis* 
chievoua heresies ever promulgated. It was never received as 
the true construction of the federal constitution, and the more 
recent case of Moore v. lUinois, 14 How. 13, shows that it was 
promulgated without the sanction of a majority of the court. 

The United Statea courts have jurisdiction over controversies 
between dtisens of different states, but no one has ever doubted 
the jurisdiction of the state courts over the same parties. To 
hold that the mere grant of power to the federal government 
over any subject extinguishes state authority over the same sub- 
ject would invalidate thousands of judgments rendered by state 
courts, in controversies between dti2sens of different states. In 
every state in the Union weights and measures have been con- 
stantly governed either by a standard established by a state 
statute, or by the common law of the state. The power of each 
state to establish its own common law on this subject has never 
heen denied. If the states have this power, they certainly have 
the power to enact statutes. The power bdng acknowledged, 
it is not for the federal government to interfere with the manner 
of exercising it. To deny the existence of this authority now 
would overturn the practice which has been uniformly acted on 
IgraU the aftates during the whole period of their political exist' 

154 BnriNOER t'. Baker. {Penn. 

eDce. It would tiixow all past tranaactiona into oonfaaioD, and 
leay^ the buainesa oommnnity no guide whatever for the future; 
for there is no certainty that congress will ever deem it expedient 
to fix a standard. Chief Justice Tilghman, in Fanner^ and 
Mechanics' Bank ▼. SmUh^ 3 Serg. & B. 69, stated a fact which 
no one has ever denied, when he declared that '* the states have 
regulated weights and measures at their pleasure, .... with- 
out objection." Their right to do so, until congress shall act 
on the subject, admits of no doubt. 
Judgment aflSrmed. 

Weiohui ajh) Mbaacbbi, Powxb to RiauLATX.— The United States eoo- 
■titatioii, art. 1, aec 8, provides that "the congress shall have power to 
. . . . 6z the standard of weights and measores.** This power on the part of 
congress has never been exercised. It is said that when the power is exer- 
cised by congress it will be ezdnsive of an exercise of the same power by the 
states. In JToU ▼. Siectmer iftantonomt, 3 Liv. Law Mag. 598, 8. C, 3 WalL 
jun. 4(i, Judge Grier, while admitting that congress had not exercised the 
power, and that the states did so continnally, questioned the validity of any 
state statute on the subject. It was not necessary, however, to decide that 
question in the esse, the parties having fixed the weight by contract. It is, 
however, the opinion ofjthe learned commentators, Story and Pomeroy, that 
nntU congress shall fix a standard, the states po ssess the power to fix their 
own weights and measnres: 2 Story on Const., sec. 1122; Pomeroy Const. Law, 
sec 410; and such opinion is apparently correct on theory, for the states may 
exercise powers granted to congress, where oongrsH fidls to exercise them, 
except when the grant to the Uaion is in express terms exdusiye, or coupled 
with a prohibition to the states, or where the grant to one would make the exer- 
cise by the other absolutely and totally repugnant: Thame$ Bank v. ZfOveU, 46 
Am. Dec. 332; Craig v. Kline, 65 Pa. St. 409; Cctfimm t. JTettA^, 24 Ind. 
513, citing the principal case. Story says that this rule has been nniformly 
upheld, and its correctness never controverted: Stoiy on Coast., sec 436; 
liawUon v. Moore, 5 Wheat. 1 ; Ogden v. €Nbbon»t 9 Id. 1; Siurff$§ v. Orownm- 
Bhield, 4 Id. 122; Offden v. Saundertt, 12 Id. I. 

BcniNOEB t;. Bakeb. 

(S9 PsmniTLTAnA Sxasb, M.] 


after a sheriff's sale under such lien, becomes a tenant at will of the sher- 
iff's vendee, and if such tenant has sown his crop before he was notified 
of the purchaser's intention to determine the tenancy, he wiU be entitled 
to take it away. 


by happening of uncertain event, not within his control, is on such de- 
termination of bis lease entitled to the way-going crop. 


treated either as a tenant for years or at will: if for years, he is entitled 

1857.] BnriNQEB v. Baksh. 155 

to the wmj'gpmti <voPi under tbe genenl custom or oonunoii Uw of Pf 
lylvaaia; if at will, hohaa theriji^t to tlie larfser emUenMnti or way-going 
crop that belonici by tlie common law to that •pedot of tnaoey. 
Casb oh Wat-ooiko Gbops Revixwbd. • 

TsoTSB for conyersion of certain growing crops. The grain 
was sown by the lessee of certain land, which land was incum- 
bered with a judgment at the time of the lease. Under such 
judgment the land was sold to defendant. Plaintiff in tbe mean 
time recoYered a judgment against such lessee, and thereunder 
levied on the crop which had been harvested. Defendant, how- 
ever, claimed that the title to the crop passed to him, together 
with the land, and therefore sued for its value. Verdict for 
plaintiff. Defendant excepted, and took this vnit of error. 

BuehJer and Hepburn, for the plaintiff in error. 

McConaughy and Cooper, ioft the defendant in error. 

By Court, Lowbix, J. There are ssTeral erroneous oases in 
our books, of reports on the subject of the vray-going crop, 
which, if they are not known as such, are continually tending 
to mislead the har and the bench. In Siaimhaxugh ▼. Yeaiei, 2 
Bawle, 161, it was decided that if during the currency of exe- 
cutions which resulted in the sale of land the crop on it was 
sold by a constable, his vendee's title is good against the sheriff's 
vendee of the land vrithiihe crop still on it In Myer9 ▼. White, 
I Id. 353, it was decided that even after the commencement of 
suit on a mortgage, the mortgagor may dispose of his growing 
crop, and then it vnll not pass to the sheriff's vendee, though it 
he still grovnng on the land. In Smith ▼. Johnston, 1 Penr. & 
W. 471 [21 Am. Dec. 404], it viras decided that even after a 
private sale of land the law allows the Tender to enter and carry 
off the crop previously sown by him. 

If these cases were right, then the conclusion would be inevi- 
table, and a fortiori, that a tenant of the ovmer of the land would 
be entitled to his way-going crop, notvrithstanding a sheriff's sale 
of the land before itvTas gathered; for he got his title to it prior 
to the sale, as others did in the first two cases. But we can 
make no use of them; for they are all erroneous, and have all 
been corrected by the decisions declaring that all rent in grain 
or in money falling due after a private sale of the land, or after 
a judicial sale vrith the deed acknowledged, and all grain of the 
vendor or debtor then growing on the land, go to the vendee, 
and no assignment of them is good against the sheriff's Tendee: 
McMuirie t. McCormick. 3 Penr. & W. 496; Farmert^ and Me- 

156 BmiNGER i;. Baser. [Pew^ 

chania^ Bamk y. Ege, 9 Watts, 436 [36 Am. Dee. 180]; Wilkins^ 
▼. Vashbinder, 7 Id. 878; Bank of Femwylvania ▼. WiaCf 8 Id. 
894; MenougVs Appeal, 6 Watts & S. 432; Boyd ▼. McC(mbs, 4 
Pa. St. 146; Bear ▼. £tter/16 Id. 175 [55 Am. Deo. 490 1; and 
these corrections are fully sustained by decisions elsewhere : 
PiilB ▼. Eendrix, 6 Oa. 452; GilleU y. Batcam, 6 Barb. 370;. 
J<me8 ▼. Thomas, 8 Blackf. 428; Shepard ▼. FkObrick, 2 Denio, 
174; Crews t. Pendleton, 1 licigh, 297 [19 Am. Dec. 750]; Prioe 
Y. Morgan, 2 Mee. & W. 54; J}um|fmou«, 2 Leon. 64. 

The case of FuUerUm y. Shauffer, 12 Pa. St. 220, if we under- 
stand the report of it, decides that a rent payable by a share of 
the com, etc., and agreed in the lease to be applied to a debt 
due by the lessor to the lessee, is a rent paid as of the day of the- 
lease, and that on a subsequent Bherifi''s sale of the land the- 
lessor's share of the growing crop did not pass to the sheriffa 
Tendee, so as to entitle him to claim it under the lease as a rent 
accruing after his purchase. It is difficult to reconcile thia 
with other decisions: BoydY. McCombs, 4 Pa. St. 146; MenougtCm 
Appeal, 5 Watts & S. 482; and with the act of assembly, which 
declares that rent paid in advance shall not be good against the 
sheriff's yendee under a prior lien, and with the fact that a rent 
of a share of the crop cannot be in fact paid before the crop is 
gathered and its amount ascertained. If it merely means U> 
declare that when the sheriff's yendee affirms the lease by suing- 
on it, he must abide by its terms, then we are not prepared to- 
deny the doctrine. The case, howeyer, is so def ectiyely reported 
that we cannot regard it as an authority for anything. 

In recoyering from the errors of the three cases first aboye- 
referred to, it seems almost natural that there should be an 
oscillation towards the other extreme; and we come to tlus ex* 
treme in the cases of Sallade y. James, 6 Pa. St. 144, and OroffY. 
Levan, 16 Id. 179, where it is decided that when a lease is sub- 
sequent to a mortgage or judgment, a sale upon either will take 
away the lessee's growing crop. At first, the crop, or share of 
the crop, of the lessor and debtor was the matter in dispute,, 
and the right of the lessee was conceded: Menough's Appeal, 
supra; Boyd y. MeCombs, supra; FuJUerUm y« Shauffer, supra; 
WOkins y. VaMmder, 7 Watts, 378. It was quite lately thai 
the tenant's rights b^gan to be denied. We think it was right 
to treat mortgage and judgment liens as entirely eqniyalent ua 
their effect upon the tenant's rights; for both of them are mer& 
liens upon land by our law, and not titles to it; and the execa* 
tions to enforce them by sale haye the same effect on other ic^ 

1867.] BrnTNOKB v. Baker. 137 

tenets. In stetes where a mortgage is treated as a land, 
and not as a lien, it is natnxal enongh that on the foredosore 
the tenant loses Us erop; for he is oonsideied as without title, 
and the yiortgagee enters hj paramonnt title, and takes all; 
but eren he cannot ha^e an action of treqnss for mesne profits: 
2 Cm. Dig. 108; Goote on Mortgages, 861; Lane ▼. King, 8 
Wend. 584. It is phun enoogh, howeyer, that this rule pays 
mneh more regard to the form than to the sobstanoe of the 
transaction in this respect. In Ohio the tenant^s growing crop 
is safe cTen against a mortgage: Cagmly ▼. Bhode$, 12 Ohio, 88. 

If at the time of the acknowledgment of the sheriff's deed 
there be a lessee in possession of the land, the ezecation law of 
1836, section 119, makes him the tenant of the pdtchaser on 
the terms of his lease; and if the lease is of later date than the 
lien on which the sale is made, the same law, section 106, re- 
4inir68 him to give up the possession within three months after 
the purchaser shall choose to giye him notice to do so, and to 
pay to the purchaser all the rent, or the yalne of the nae of the 
land, accming after the acknowledgment of the deed, and all 
^damages for unjust detention: Sees. Ill, 119; and these pro- 
visions are codified from the old law. 

It seems to us tcij plain that this law makes the lessee, under 
a lease of later date than the lien, a tenant at will of the pur« 
chaser tmder such lien; and then it follows, on well-settled com- 
mon-law principles, that if he had a crop in the ground before 
he was notified of the landlord's election to determine the ten- 
ancy, he will have a right to take it away. It is essentially a 
lease for years, but subject to be determined by an uncertain 
•event depending on the will of others, that is, on the will of lien 
creditors and the purchaser under their liens. As between the 
lessor and lessee, it is a lease for years. As between the lessee 
and the sheriff's vendee, it is a lease at the will of the latter, 
unless he ratifies it as a lease for a term. If a tenant subject to 
liens were not entitled to the privileges of a tenant at will, then 
liens would become a nuisance, pxeventing the leasing of lands 
tneombered by them, and requiring leases to be made at ruin- 
ous rates, because of the risk that is to be run by the tenant. 

The influence of this act of assembly seems to have been over- 
looked in the case of SaOade v. Jame$, 6 Pa. St. 144, and of Cfrqff 
V. Levan, 16 Id. 179, which follows its lead; and the decision 
in the former case is deduced from the assumption that a lessee 
can have no greater right than his lessor would have had. But 
this is a mistake, logical as it may at first seem; for it is a 

168 BrrriKQER v. Baksb. [Penn. 

familiaf principle that a leasee may be entitled to his waj-going 
crop, even in cases where his lessor would not be; as where a 
widow is seised of an estate during widowhood, and marries, she 
cannot have her growing crop, but her leasee is entitled to his: 
1 Bla. Com. 124; Oland v. Burdunck, Cro. Eliz. *460; Goodman 
and Oort^s Case, Gk>db. & G. 189. Or if there be a lease by a 
husband of his wife's land, and then a divorce while the tenant's 
crop is growing, the wife shall not take it from him: OoyJd v. 
Webster, 1 Tyler, 409. 

The principle of these cases is, that where a person is in pos- 
session of land under a title that may be determined by an un- 
certain '^vent not within his control, it is essential to the interests 
of agnculture that such a determination of his lease shall not 
prevent him from reaping what he has sown: Co. Lit. 55; 4 
Kent's Oom. 78; Bank of Pennsylvania v. Wise, 8 Watts, 405. 
It is a rule demanded by the common sense of the people, and 
Spending on it; and if it does not extend to a case like the 
ooe we are considering, then we have revealed to us this strange 
anomaly of a rule of common law or general custom that is un- 
known to the people, and that operates as a snare to them when 
acting on the dictates of common sense. 

This principle is further illustxated by numerous cases, as 
when a husband sows land held by him and his wife during 
marriage, and they are divorced, he shall have his crop; for 
though the suit is the act of the parties, the sentence of divorce^ 
is the act of the law: Goodman and Got^% Case, Gk>db. & 0. 189; 
Oland V. Burdmck, Cro. Eliz. *460; MaokaOet/s Case, 5 Go. 
116. And where a daughter enters on land as the heir of her 
father and sows a crop, she may take it away though her titie 
is defeated by an after-bom son before it matures: Co. Lit. 65. 
And in tenancy by statute merchant, which is a tenancy for 
years, subject to be defeated by payment of the debt by other 
means, if it is thus defeated, the tenant shall have his growing 
crop: Id. And so much is this a favor to him that sows, thai 
when land with a growing crop on it is devised to A for life» 
with remainder to B, and A dies before the crop is gathered, 
his executors cannot have it; and if a woman sows her land 
and marries, and her husband dies before the crop is gathered, 
the wife, and not his executors, shall have it: Goodman and 
Gore's Case, Qodb. & G. 189. 

Under our execution law, we do not see how it is possible to 
treat a lessee in possession, or in partial possession by his grow- 
iDg crop, at the time of a sheriff's sale, otherwise than as a ten- 

1857.] BmiKGER V. Bakxb. 159 

ant for yean or aa a tenant at will. If he is tenant for years, he 
is entitled to the usoal way-going crop of fall giain, under the 
common law or general custom of PennsylTania, unless his 
contract be otherwise. If he is tenant at will, he is entitled to 
the laiger emblements or way-going crop that belongs by the 
common law to that species of tenancy. Either of these views 
is sufficient to protect him in the present case. But his claim 
here can only be as tenant for years; for his term had expired 
before the sheriff's sale of the land» and the only right remain- 
ing to him wae his way-going crop as tenant for years. He 
had no right to sow more, and therefore could reap no more. 
The sale of the landlord's right did not defeat the tenants right 
to his crop, which he had lawfully sown on a &ir and honest 
Judgment reversed and a new trial awarded. 

Esozy J«» dissented. 

TkNANT's BiOBT TO Wat-oouto Geop: See Oraig v.. DaU, 91 An. Deo. 
477; Foniftke v. PHee, 34 Id. 4/K; iiota to Oc9ernor t. ffiOen^ 00 Id. 102; 
Bdmm r. Cdhum^ 07 Id. 790^ sod osses in note 788. TIm prinolpsl oaee ia 
dted M an expoiitioD of the law oq this heed in If oftoa r. /onte, 05 K. C. 

LiBBiB uimaa LaASs or Laxbb Dati tbav Bzmnro Iimk after eheriff '• 
Mle beoomee tenant at wfU of the vendee, sod i» entitled to the way*going 
crop: Ileamkm v. Farmenf Bank, SI Ind. 268; 8tadtUm*9 Mdait^ 8 Bnwet 
824; MUkr r. CUmaU^ 40 Fa. St. 489; Hm^dm t. PMereo% 51 Id. 205; 

ildomi T. JfcJteon, 58 Id. 88| iTen*^ v. Jfet^Wt MU- 21^ •ll«it»f^« 






Pbovidenoe Bake v. WjLKUSt&os. 

[A BBOOS IUiAVD, 607.] 

PUTITT AMONG Pa&tibs DsiVNDANT, oxM of whom olaiioa three sluuree 
of stook in oomplAiiiaiit's bank under An AttAohment Against the peraon 
in whose name they stand, the second of whom claims two of the shares 
onder an assignment of all three for the benefit of creditors, and the third 
of whom claims the remaining share under a sale to him by the aangnee. 


Hi IS No Pabtt to Ant Suit» and has no intersst in any suit pending 
between the other parties to the bill, when the bill aUsges that be threat- 
ens suit against the complainant as claimant of part of the p rop er ty , and 
a suit for the remainder of the property is pending by one who claims 
under him against the complainant. 

OvBonor ot Adbqvatb Bbmspt at Law u not Ayailablb AOADin 
Bill ot Intebplxadeb that states a proper case for interpleading; the 
forum in which the parties shall litigate under the bill, whether at law 
or in equity, is a matter of after consideration. 

Iqumr Takxs Ca&x, upon Bill or Intbbplxadbb, that no right or equi- 
table privilege of trial is lost to any party by its interference; therefore 
a bill of interpleader is not demurrable on the ground that it produces 
confusion by the change of the forum from law to equity, and deprives 
the demurrant of Ids witnesses by making them parties. 

Bill of interpleader by the Proyidence Bank against Wilkin- 
son, Padelford, and Trescott. Padelford had attached, as the 
property of one Whipple, three shares of the capital stock of 
the plaintiff bank standing in Whipple's name. Before the at- 
tachment the defendant Trescott had claimed these shares as 
the assignee of Whipple in a voluntaty assignment for the ben- 
efit of creditors, and after the attachment demanded leave from 


Mareh, 1S57.] Pboyidxnce Bank v. Wilkinsok. 161 

the hmnk to transfer on its books one of the shsiee to the de- 
fendant Wilkinson, who had purchased it from him. The bank 
refused to permit this, because of the attachment; and after* 
wards Wilkinson brought suit against the bank for damages 
resulting from this refusal, and for the diridends accrued 
thereon. This suit and the attachment were still pending. The 
bill alleged these facts, averred that the complainant bank was 
and always had been ready to transfer the stock, and pay the 
dlTidends, to the rightful owner, but that Padelford claimed 
the shazes under his attachment, and Trascott claimed two of 
them, and Wilkinson one of them; that they hare each pre- 
sented their claims to the bank, and threaten to sue, and Wil- 
kinson threatens to prosecute his suit already commenced. The 
bill prays that the defendants may interplead, and for other re 
lief. Padelford and Wilkinson answered, respectiTely alleging 
and denying the frandulenqr of Whipple's assignment for the 
benefit of crediton. Trescott demurred to the bill, and this is 
the decision upon the demurrer. He assigned as grounds for 
demurrer: 1. That he was not a party to any suit pending be- 
tween the complainant and the other defendant?; 2. That he 
was not interested in any litigation pending between the other 
parties to the suit; 8. That there was not privity between all 
the parties to the suit; 4. That there was an adequate remedy 
at law for all the parties; 5. That interpleader tends to confuse 
the questions inToWed, and make the rights of parties depend 
upon rights of others, and upon rules of proceeding which de- 
prive them of legal remedies; 6. That the bill deprives him of 
lus witnesses by making them parties; 7. That it produces con- 
fusion in his obtaining his rights. 

Mandiester, for the demurrant. 

Hayes and MaUhewson, for the complainant. 

By Oourt, Ansa, 0. J. Three shares of the capital stock of 
this bank are certainly claimed by the defendant Padelford tc 
have been duly attached by him as the property of Whipple, anu 
by the other two defendants to have been at the time of the at- 
attadiment the properly of the defendant Trescott, by virtue of 
a prior voluntary assigxmient made to him by Whipple, for the 
benefit of the latter^s creditors. We do not know what is meant 
by the assertion in support of the demurrer that there is no priv- 
ity between Trescott and Wilkinson, when the latter claims one 
of the shares in controversy by virtue of an alleged purchase of 
tt from the former; nor by the suggestion that there is no priv- 

Am . D>o. Vou LXX— U 

1C2 Proyidskge Bank v. Wilkinson. [R. L 

ity between the bank and the defendants Trescott and Wilkin- 
Bon, when both, in opposition to Padelford's attachment, clain» 
that it is the duty of the bank to recognize one of them as the 
owner of two shares of the assigned stock and the other as the 
owner of one share, by Tirtae of their relation to the bank of in- 
choate stockholders. The tnith is, that the attaching creditor 
sets up Whipple's title against the bank, and the assignee of 
Whipple, Trescott, and the purchaser from him, Wilkinson, set 
up Trescott's title to this stock, and this bank is attacked, or threat- 
ened to be attacked, or has reason to fear that it will be attacked^ 
by all three. It is true that Trescott and Wilkinson, as against 
Padelford, are not joint claimants of the three shares attached 
by him; but distinctly claim, as stated in the bill, the former, 
two of them, with their dividends accrued and accruing, and the 
latter, one of them, with its dividends accrued and accruing. If, 
however, in a bill to be brought by a purchaser of these shares 
under Padelford's execution to set aside the assignment under 
which both claim as fraudulent and void, they may and must be 
joined, we see no more objection in joining them in this inter* 
pleading bill, as representing the whole interest in these shares 
and dividends, in opposition to Padelford, for the purpose of try- 
ing the same question as to the assignment, and no greater dan- 
ger of confusion is likely to arise in such a trial from their 
joinder. The bill states, which is all that we have to do with on 
this demurrer, that Padelford claims these shares and the divi- 
dends accrued and accruing by virtue of his attachment, and Tres- 
cott and Wilkinson the same shares and dividends by virtue of 
Whipple's anterior assignment. It is admitted, therefore, by the 
demurrer, that the same subject is in controversy between these 
parties, and the bank seems to be the object, or threatened ob- 
ject, of attack of all three, itself having no interest whatever in 
the contested question which of the three shall prevail. We 
cannot see that this state of things has been produced by any 
fault of the bank, or that it has in any way so recognized the 
title of, or obliged itself to, either party as to preclude it from 
calling upon the court to compel aU three to contest between 
themselves, and at their own cost, a matter in which it stands 
perfectly indifferent, and by the result of which it ought to be 
wholly unaffected. 

Another objection to the bill stated on the part of Trescott 
under this demurrer, that he is no party to any suit, nor has an 
interest in any suit now pending between the other parties to 
the bill, cannot avail him. He certainly is alleged by the bill ia 

llaixh, 1857.] Schboideb v, Paterson. 163 

tbim, and to ihxeaten suit against the plaintiff as a claimant of, 
two aharee of this stock under Whipple's assignment; and the 
leiy soit now pending agaiQst the bank for not transferring one 
shaore of the stock was cansed by an assertion of his title in 
assigning it to a porchaser, the plaintiff in that suit. Having 
caused one suit, and admitted that he threatens another in su]>- 
port of the title attached by Padelford, he has no reason to 
complain if made a party to this biU in relief of the mere stake- 
holder, thus attacked by one suit through his agency, and now 
threatened with another by him. 

The last objection insisted upon at the argument, that the 
remedy at law is sufficient for all parties, is, considering the sub- 
ject of contest, fraud in an assignment for the benefit of credi- 
tors, hardly tenable as to any of them; a court of equity being 
the Tery forum in which such a question^ can best be litigated. 
But however this may be, we cannot see its application to the 
maintenance of this bill as an interpleading bill. The question 
now is merely, Does the bill state a case in which the defendants 
ought to be compelled to interplead in relief of the plaintiff? — 
the forum in which they shall litigate under this bill, whether at 
law or in eqtiity, to be a matter of after consideration. This 
answers all the other objections to the bill, such as loss of eyi- 
dence and supposed confusion from the change of forum, etc., 
even if they had an existence; since the court always takes care 
in such a case, as it has the power to do, that no right or equi- 
table privilege of trial is lost hy its interference to any party. 

This demurrer must be overruled, and the defendant Trescott 
ordered to answer the biU. 

Bill or Istkblfuladka whxn Sustainablb: See Adam§ v. 
Am. Dec. 008, and oaaea cited in the note 611; see also the labjeot of inter- 
pleeder treated in the note to Show v. Co$Ur, 35 Am. Dec. 005-712. 

TsBSATursD Suit bt Onb or CLkiMAJim is Qbouxd won iBnaPLBAniat 
Tmbanmffh v. Tkamaon, 41 Am. Deo. 02& 


[4 Sbodb Injom, 816.] 

Oub Who €k>BTRA0T8 to Pubohasb Pbopbrtt, OirxBo to ■» VBiiiKm 
MonsoAOB UPON Otheb Pbopzbtt to aecnre the payment of the pnr^ 
ohaae momey^ bat who by a tnbeeqnent agreement ■eenrae the eabetita" 
tkn of another in hie place aa purchaser, by the term* of which the 
mortgage remains security for tibe payment of the purchase money by the 
substitute^ is u««ither a vendor of nor a co- purchaser with the substitute. 


■ad obtaina, hj reason of the mortgage, neither a joint intereat with the 
■abatitote in the property purohased nor a lien upon it^ eapedally whea 
by the agreement of aabstitntlon the title waa to Teal ahaolntely in tiis 

Bill to enforce lien upon personal property, or to huwe par- 
tition of the same, to which a demnner was filed for want of 
equity. The plaintiff contracted with Thurston, Gardner, & 
Co. for the construction of a steam-engine, boilers, and tjU^mnQ 
for use in a print-mill, and it was stipulated that as security for 
the pajonent of the purchase price Thurston, Gardner, & Ck>. 
were to remain the owners of the property after it was placed in 
the mill and until payment in full; and as further security, the 
plaintiff executed to Thurston, Gardner, & Co. a mortgage upon 
certain copper printing-rollers belonging to him. Before any 
payment was made, another contract was made between the 
plaintiff, the defendant, and Thurston, Gardner, & Co., by the 
terms of which the defendant was substituted for the plaintiff in 
the former contract, it haying been previously arranged that the 
defendant was to operate the mill and employ the plaintiff aa 
manager. The contract of substitution stipulated that the de- 
fendant was to make a cash payment and give his notes for the 
balance, whereupon, differently from the former contract, the 
machinery and labor bestowed thereon were to be the property 
of the defendant from the time of the deliveiy of the machinery 
and the performance of the labor. And it was further stipulated 
that the mortgage given by the plaintiff to Thurston, Gardner, 
& Co. was to be held by them as security for the performance 
of the substituted contract by the defendant, and for the pay- 
ment of all notes and other paper which might be given by him 
to the firm under that contract. The machinery was delivered, 
and the defendant made the cash payment and gave his notes for 
the balance of the price. The bill concluded with the averment 
that the defendant had failed to pay his notes and was insolvent, 
leaving the plaintiff's copper rollers subject under the mortgage 
for the payment of the same; and this it was supposed either 
gave the plaintiff a lien on the machinery to the value of the 
copper rollers, or made him a part owner of it in the proportion 
of that value to the value of the machinery, and thus entitled 
him to partition. 

Famswofiht for the demurrant. 
CoMtengt for the complainant. 

Uarcli, 1857.] Schroedeb v. Patbbson. 185 

By Court, Ames, G. J. The plaintiff's tiUe to relief qi 
tioned by the demurrer depends upon whether he is, upon the 
facts stated in his bill, a joint owner of the steam-engine, eio.« 
described in it, and so entitled to partition under the statute of 
this state, or, if not, whether he has a lien upon the same which 
equity calls upon us to recognize and enforce. 

His joint ownership seems to us to be negatired by the ex- 
press terms of the contract of November, 1866, entered into 
between the defendant, Thurston, Ghirdner, & Co., and himself, 
which stipulates that upon the defendant's making the cash 
payment, and giving his notes for the price of the steam-engine, 
shafting, etc., and labor on the same, the same " shall be the 
property of the said Paterson from the time of the delirezy 
thereof upon the said works and the performance of the said 
labor." The bill states that the defendant did make the cash 
payment towards, and give his notes for the balance of, the price 
of the steam-engine, etc., and that they were delivered upon the 
works; and from these facts, coupled with the above words of the 
contract designed to mark out the rights of all parties in the prop- 
erty which formed the subject of it, we do not see what vestige 
of interest in the property is left in the plaintiff. We know of 
no legal machinery by the operation of which one who secures 
the price of a purchase by a mortgage of his property becomes 
a joint owner with the purchaser, especially when, as in this 
ease, it is stipulated that the property, the price of which is 
thus secured, is to be vested in the purchaser. This disposes 
of the claim of the biU to equitable partition. 

Kext, does the biU show any lien on this property in the 
plaintiff which the court can declare and enforce ? 

It is not pretended that the agreements set forth in the bill 
gifV) any lien by express terms to the plaintiff; but the court is 
asked to imply a lien in his favor on the property in question, 
because he has mortgaged some other property of his to secure 
a portion of the price of this. Upon what principle does such 
a fact give a lien in equily upon property the title to which has 
by the agreement of the claimant of the lien himself absolutely 
vested in the purchaser? The plaintiff is neither a vendor of 
this property to, nor a co-purchaser of it with, the defendant. 
He was, it is true, an original contractor for it, but ceded all 
his interest under his contract to the defendant, who was, in all 
respects, to take his place; the person with whom the plaintiff 
oontracted, requiring a mortgage given by the plaintiff to remain 
as security for the performance of the contract l^ his substitute. 

166 ScHROEDXB V. Patebson [R L 

as the condition of his personal exemption. He has actoallj 
paid nothing, and may never pay anything, towards the pzioe 
of this steam-engine and fixtores; bat may, at this very mometit, 
bu jcontesting with one hand the right of Thurston, Gardner, Sl 
Co. to his copper rollers, under their mortgage upon them, 
whilst he stretches out the other for this lien by virtue of it. 
The two cases cited from Randolph's reports have no application 
to this. 

In Hay$ v. Wood, 4 Band. 272, the court held that one of two 
co-purchasers of land who has paid more than his share of the 
purchase money has a lien on the land to the extent of his ad- 
vance. As we have seen, the plaintiff in this case is no joint 
purchaser of the property in question, and if he were, he has 
not paid more than his co-purchaser. He has paid nothing; 
all that has been paid has been paid by the defendant alone. 
Hatcher t. Haicher, 1 Id. 53 — a note of which only we have been 
able to procure — seems to have been the case of a surety in a 
bond for a deed of land, who, none of the purchase money hav- 
ing been paid, went into a court of equity to subject the hmd to 
the payment of the purchase money, in relief of himself as surety. 
By the usual terms of such a bond, the legal title is not to be 
conveyed to the purchaser until the purchase money is paid, but 
remains in the mean time in the hands of the vendor as a security 
for the purchase money. The bill in that case was probably 
nothing more than a bill by the surety of the purchaser against 
him and the vendor, to compel the latter to look to his lien on 
the land before looking to the surety; and if so, was brought to 
administer a well-known equity. Thurston, Ghirdner, & Co. 
have reserved no lien on this steam-engine and fixtures to which 
this bill seeks to compel them to look before proceeding against 
the plaintiff's copper rollers, and indeed, are not made parties 
to this bill. On the contrary, by the express terms of a con- 
tract to which this plaintiff himself was a party, they waived the 
lien originally reserved by them upon it, and agreed that upon 
delivery the property should become the absolute property oi 
the defendant. 

The demurrer is sustained, and no notice of a motion to 
amend having been given, the biU must be dismissed, with costs* 

No Lttv Abisbb vob Pubchasb Mohxt Loahkd bt Thibd Psbsoit to tht 
purchaser of Und; nor is aneh peraon privy to the tale: SiammU v. BoberU^ 
42 Am. Dec. 193. 

Aug. 1857.] ' Russell v. Buckley. 1C7 

Russell v. Bugklet. 

[4 Bmoom Uuam, 01.] 
LntxE PBoratLr Mailed avb DmonD n Phbumbd to bati 

AttuiMwuT. The defendant testified that he mailed 
times two letters, directed to the plaintiff, inclosing in each of 
them one half of the amount of the plaintiff's debt. The de- 
fendant requested the instruction that in the absence of proof 
to the oontraiy, the receipt of the money might be inferred from 
the teetimonj of the defendant as to the manner of mailing and 
directing the letters. The court refused the instruction, and 
the jury returned a Terdict for the plaintiff. The defendant 

Sheffidd, for the defendant. 

W. H. Cran$Um, for the plaintifll 

By Court, Axis, 0. J. There must be a newtrial in this ease, 
on the ground of misdirection to the jury. It is true that if a 
miscairiage of the letters inclosing money, sworn to have been 
mailed by the defendant, had been proved, in the absence of 
proof of authority from the plaintiff or his wife thus to remit 
to them, the loss by the miscarriage must have fallen upon the 

Li the posture of the case, however, exhibited by the bill of 
exceptions, the defendant was entitled to the direction in sub- 
stance requested by him— that if the jury believed, from the tes- 
timony, that the defendant had mailed letters, inclosing money » 
as he swore, they were authorised, in the absence of proof to 
the contrary, to presume that th^ were received by the plain- 
tiff's wife. Such a presumption is in accordance with and is 
founded upon common experience, and is therefore known to 
the law as a presumption from the ordinary course of business. 
Further proof of the receipt of a letter than what is derived 
from proof of the proper direction and mailing of it would be 
wholly unnecessary, always difficult, and often impossible. 

New trial granted, to be had at the next term of the court of 
common pleas for the county of Newport. 

liAiLivo Lrtib AnDBiBBKD TO FsBsoN AT ms Plaos OF BiTIINm U 
prima /iMde evidence that he reoeiyed it in the ordinary oonne eC the malist 
HwUky V. WhUiier, 105 Man. 892, citing the principal 

168 State v. Brown. [R I. 

State v. Bbown, 

[4 Bhodb Isjjid, 098.] 

hmcmBBKT UHBIR BaoDS Island Statutk oonckbvino FoBouia ov Hawk 
BiLUy and the uttering and having in posseesion coonterf eit bank biUi» 
mut allege with due certainty that the bill was in imitation of or par- 
ported to be iflioed by aome "corporation" **e8tabllahed as a bank,** 
and aome proof in rapport of this allegation must be introduced. 

At Common Law, Indiotbixnt vob Possvssino or Uttkrino Fobobd Bane 
Bill with intent to defraud is not maintainable, since to constitute the 
common-law cheat somebody must have been defrauded or cheated. 

Ihdiotmbnt vob Possbbsino OB Uttxbino Fobobd Bank Bill is maintain- 
able in Bhode Ishmd, without alleging that it was in imitation of or pur- 
ported to be issued by aome corporation established as a bank, though 
this allegation is necessary in an indictment under the statute conoeming 
the foiging of bank bills and the uttering and having in possession of 
counterfeit bank bills; for another statute provides an indictment for 
the forgery or criminal uttering of any promiaBory note or any writing 
whatever purporting to contain the evidence of any debt, contract, or 
promiae, and a bank bill fairly comea within the purview of thia aee- 

AiLMATioN IN Indioimxkt vob Cbiminallt Uttxbino Fobobd Bank 
Bill, that the bill waa in imitation of a bill israed by a certain bank, 
reqnirea proof of the existence of a genuine bank note upon auch bank. 

(Jttkbino as True Note Pcjrfortino to be Issued bt Bank ia an admis- 
aion by the utterer of the existence of the bank aufficient to prove it in 
the abaence of evidence to the contrary. 

SciENTmc, Pborsrional, or Business Books ob Pubugationb abb not 
Etidbnoe of the facta atated therein, though admiaaibie to ahow the 
atate of invention, the course of composition, the meaning of worda, 
or the theoriea or opinions prevailing in the age in which they were 

Witness is not Competbnt to Testitt to Genuineness of Bank Kote 
who baa never aeen a genuine note of that bank, butwhoee knowledge of 
its notes is derived from fao-similea engraved or descriptions printed in a 
bank reporter or directoiy. 

No One is Competent to Txstut to Genuineness of Signature who is 
not acquainted with the signer's handwriting from seeing him write, or 
from frequently seeing specimens of it, or from a comparison before the 
jury of the questionable handwriting with specimens of it, produced, 
admitted, or clearly proved to be not only genuine, but not got up for the 


who is acquainted with it only from printed descriptions and fac-aimUea. 
On Indictment for Criminally Uttering Counterfeit B^k Notes, 
it may be proved that the prisoner on the same day passed as genuine 
spurious as distinguished from counterfeit bank n^tes, and that when 
arrested he had aeveral auch notes both signed and unsigned in his poa- 
aeaaion, for the purpose of ahowing that lie knowingly paased theconnter- 
feit bill with the uttering of which he is char£:c<l. 

Aug. 1857.] State v. Brown. 169 

ImnDiMBNT against Daniel Brown for haTing in hispoaaeesion 
with intent to pass, and for passing with intent to defraud one 
Keating, a ten-doUar counterfeit bill of the Bank of Montgom- 
eiy County, Pennsylvania. The first count charged him with 
having in his possession a counterfeit bank bill, '' purporting to 
be, and in imitation of, a bank note " of the above bank, and in 
words and figures as follows: ** The Bank of Montgomery 
Gouniy promise to pay ten dollars on demand to B. Magune or 
bearer," dated, and signed by the president and cashier, with 
intent to pass it as true, though knowing it to be false. The 
second count charged the uttering of the counterfeit bank note 
with knowledge of its falsity and with intent to defraud. To 
prove that the note was counterfeit, the prosecution called 
Weaver, who testified that he had been a bank cashier for thirty 
years, and was accustomed to handle money; that he believed 
there was such a bank as the Montgomery County Bank, and 
that the note in question was counterfeit; that he had no rec- 
ollection of ever seeing any bills of that bank that appeared 
to be genuine, and his knowledge of the existence of the bank 
was derived from the bank-note directory, or like publications. 
This testimony waa objected to by the prisoner's counsel, but 
the court admitted it. Subject to the same objection, the testi- 
mony of Mumford was admitted, who testified that he had been 
a bank cashier for many years, and was familiar with bank 
notes; that he thought there was such a bank as that named 
in the indictment, and that he must have seen a bill of such a 
bank, for in some way the name seemed familiar to him. He 
had seen the name of the bank in publications, but had no 
other knowledge of its existence. He thought the bill in ques- 
tion counterfeit. He had compared it with a facHsimile of a 
bill of that bank contained in a bank publication, and thought 
that the writing in the bill seemed stifEer than in the fac-simile. 
For the purpose of proving that the prisoner knew that the note 
uttered by him was counterfeit, and contrary to the objection of 
the prisoner's counsel, the court admitted evidence that the de- 
fendant, at the same time and at the same gambling sitting, 
passed to Keating, as change for a five-dollar bill, two spurious 
unsigned bank bills, and that upon the arrest 'of the prisoner 
there were found upon his person other spurious, as distin- 
guished from counterfeit, bank biUs, both signed and unsigned, 
and these were laid before the jury. To the admission of this 
evidence, and to the charges of the court, exceptions were taken 
\iy the prisoner's counsel. 

170 State v. Brown [R. I 

Sheffield^ for the prisoner. 

Hari^ aUomey'general^ for the state, 

£j Court, AiOBS, 0. J. This indictment seems to have been 
treated below and in the argument before us as if found and 
to be maintained under the sixty-ninth and seventieth sections 
vi the act concerning crimes and punishments: Dig. 1844, 390. 
Those sections, which are to be read with the sixty-eighth section 
of the same act in order to be understood, relate, so far as bank 
bills or bank notes are concerned, to the uttering of counter- 
feit bank bills knowing them to be counterfeit, and with intent 
to defraud, and the having such bills in possession with such 
knowledge and intent, only when in imitation of or purport- 
ing to be bank bills, issued by some ** corporation, which is, or 
hereafter may be, established as a bank in this state or else- 
where." Such is the precise language of the sixty-eighth sec- 
tion, which relates to the forging of bank bills, and the sixty- 
ninth and seventieth sections relating to the criminal uttering 
and having in possession of bank bills, import the same limita- 
tion by the words '' any such false," etc., *' bank bill or note," 
found in both of them. To describe, therefore, an offense 
against either of these sections, the indictment should allege 
with due certainty that the forged note criminally uttered or 
possessed was in imitation of or purported to be a bank bill 
issued by some corporation established as a bank; and in such 
case, some proof of the establishment of the corporation as a 
bank (what it is not necessaiy now to decide), must be given to 
satisfy this necessaiy allegation. 

The indictment before us, however, contains no such allega- 
tion, and could not therefore be maintained under either of 
those sections. In this respect, it will be noticed that these 
sections of our statute differ materially from the statute of New 
York, to the exposition of the words of which the cases of Peo- 
pie V. Davis, 21 Wend. 310-313, and People v. Peabody, 25 Id. 
472, have been cited on the part of the state. The words of 
that act are, or were, ^* issued or purporting to have been issued 
by any corporation or company didy authorized by the laws of 
the United Stat^, or of this state, or of any other state, gov- 
ernment, or country" — ^words which include the forgery, etc., 
of the bills of all banks, whether incorporated or not. 

Nor is this indictment maintainable at common law. The 
offense of actually obtaining money or other valuable thing by 
the use of a false token is undoubtedly punishable at common 

Aog. 1857.] State v, Bbown. 171 

kw AS a ehaal; bat to oonstitate saoh a miademeanor at com- 
iDon Liw, fiometwdy moat haTe been defmoded or cheated; 
irhereas this indictment merely charges in one count the poa- 
MSBiDg, and in the other the uttering, of the forged bank bill 
inth an intent to defiand: 2 East P. 0. 825, 826. The indict- 
ment is, howcfrer, maintainable in our riew under the seventy- 
leoond section of the act concerning crimes and punishments 
(Kg. 1844, 390, 891), which enumerates amongst the many in- 
stnnnents the f orgexy or criminal uttering of which, when forged, 
18 to be duly punished, any "promissory note," and finally, 
"any writing whaterer purporting to contain the endence of 
any debt, contract, promise, etc.'' A bank note, such as this 
indictment describes and sets forth, is '*a promissory note,'* 
and at least purports to contain the evidence of a debt, con- 
tzBct, or promise on the part of the bank; and fairly comes 
within the purview of this section, whether the bank be incor- 
poiated or not: Brown t. CcmmonwedUh, 8 Ifass. 64; Common' 
weaUh ▼. Carey, 2 Pick. 47, 49, 50; CommonwedUh t. Riiey, 
Thach. Cr. Gas. 67. 

We have called attention to the section under which we deem 
this indictment sustainable, that we may occupy a proper posi- 
tion from which to discern whether any evidence of the exists 
enoe of the Montgomery Counly Bank was necessary to be given 
to the jury in order to convict the prisoner under it. The ab- 
sence of competent evidence to prove its existence being the 
first exception, in proper order, to the rulings and charge of the 
court below. Now, this section punishes not only the forging 
and uttering with a criminal intent of the forged instrument 
in imitation of something actually existing, or made by some 
person or corporation actually existing, but, as we have seen, the 
false making, or uttering with the criminal knowledge and intent, 
of '* any writing whatever purporting* to contain evidence of any 
debt, contract, promise, etc.; " that is, as we construe it, of any 
writing professing on its &ce to contain such evidence. In 
this view, had the indictment simply charged, as it might have 
done, that the prisoner uttered a forged note with the criminal 
knowledge and intent, purporting to be the promissory note of 
the Montgomery County Bank, or a writing containing evidence 
of a promise by the Montgomery Counfy Bank, we mean, of 
course, with due certainty, no evidence of the existence of the 
t>ank, either as a corporation or association, would have been 
necessary, since the crime described by this section of the stat- 
ute would have been set forth in the indictment, and might be 

172 State v. Brown. [R L 

fally proved, whether such a bank existed or not: People ▼. 
Davis, 21 Wend. 310, 312, 313, and cases cited. If, indeed, the 
allegation was that the fraudulent uttering was with intent to 
defraud the bank, proper proof of the existence of the bank 
would be requisite: People ▼. Peabody, 25 Id. 472. 

The indictment before us, however, does not so describe the 
offense committed by the prisoner; but alleges that the note 
criminallj uttered by him *' was in imitation of, and purported 
to be, a bank note issued,'' etc. As descriptive of the particu- 
lar offense charged, and of the instrument and means by which 
it vras committed, we deem this allegation so far material that 
some proper proof should have been submitted to the jury to 
support it. An imitation supposes something to be imitated; 
an imitated bank bill supposes a genuine bank bill, issued, of 
course, by some existing bank. Although we do not think that 
in a case in which it was necessary to prove the existence of a 
bank, reputation, and therefore the statement of the fact in a 
printed publication, would be sufficient, yet we do think that 
the uttering as true a note purporting to be issued by a bank is 
an admission or statement of the existence of the bank by the 
utterer of the strongest character; and certainly, in the absence 
of aU proof to the contrary, as in this case, qtiite sufficient 
to prove its existence: Uniled States v. Ibye, 1 Curt. 365, 366. 
With proof of this sort in the case, if the mere question had 
been whether the Montgomery County Bank existed or not, 
we should not have been disposed to grant a new trial because 
the judge below charged the jury that reputation alone was suf- 
ficient evidence of the existence of the bank, however mistaken 
we might have deemed him to be. 

The allegation, however, that the uttered bill was in imita- 
tion of, as well as purported to be issued by, the Montgomery 
County Bank, we have already said we deem to be material. 
Indeed, in such a case, not only do the cases and text-books 
suppose some proof of imitation necessary, but define the de- 
gree of resemblance necessary to be proved, nearly in the words 
of the learned judge who tried this case below, as such as would 
impose upon persons of ordinary observation: 2 Stark. Ev. 57U; 
2 East P. C. 951, 952; SUUe v. Carr, 6 N. H. 367. The excep- 
tion, therefore, taken to the evidence offered in support of this 
allegation, involving also, as it seems to us to do, an exception 
to, or at least bringing before us, the kind of evidence by which 
the forgery itself was proved, next demands our attention. 

Without going into a critical analysis either of the rulings 

Aug. 1857.] State v. Brown. 173 

upon the testiinony or of the chai^, it safBeiezitly appears from 
the bill of exceptions before us that the fact that the bill uttered 
vas an imitation of the genuine bills of this bank as all^gad, or 
even that it was a forged bill of this bank, rested wholly upon 
the testiniony of two witnesses; one of whom swore that he had 
neTer seen a genuine bill of the bank, and knew nothing about 
the bank or its existence except what he had derived from some 
printed bank reporter or directory, and the other of whom could 
not swear with certainly to any other source of knowledge, and 
fieems to have come to a conclusion that the bill was foiged, 
from a comparison between the handwriting in the bill uttered 
and a fao-simile of the handwriting in a fao-simile of a bill of 
this bank found by him in some similar publication. It is 
hardly neoessazy to say that printed books or publications of 
any sort are not received in courts of justice as evidence of any 
lact stated in them, however practically useful they may be as 
guides to professional or business men. It is indeed true, as 
suggested, that much of the scientific knowledge of experts in 
medicine, surgery, mechanics, chemistry, etc., is derived from 
books; and the tmowledge of experts in any of the arts founded 
upon science would in general be small indeed had they not 
availed themselves of the fruits of the research and experience 
of their predecessors as taught in books. Yet even in such a 
case, the scientific book would be no evidence of any fact stated 
in it interesting to an issue on trial in a court of law; nor a 
historic work, of the happening of any event related in it, to be 
found by a jury; though valuable and admissible for the pur- 
pose of showing, when necessary to be shown, the state of in- 
vention, the course of composition, the meaning of words, or 
the theories or opinions which prevailed in the age in which 
they were written: Bee Don&y v. Ousefey, 86 Eng. L. & Eq. 519, 
524-526, 529, 631, in which this matter was recently considered 
by the court of exchequer. Much less can ephemeral publica- 
tions, such as bank directories or reporters, be referred to or 
produced in court in proof of any fact stated in them; or the 
lac-similes of bank bills, printed in them, be employed as 
standards of comparison, to which bills charged as counterfeit 
are to be referred for the purpose of proving either their general 
resemblance to or spet^ difference from the genuine bills of 
the bank. Nor, however expert he may be as a detector of bad 
money in general, do we deem any witness qualified to instruct 
a jury whether a particalar note counteif eits another or othen 

174 State v. Brown. [R L 

of the flame bank who has never seen a genuine note of that 
bank, but whose whole knowledge of its notes is deriyed f ron> 
engraved f ao-simileSy or printed descriptions, for the aoeoracj oi 
even honesty of which we have no voucher. It is within eveiy 
man's experience that many genuine bills of distant banks have- 
been condemned as counterfeits by experts on account of bad 
engraving or oven bad paper, they having no knowledge of the 
engraving or paper actually employed. As to the handwriting^ 
in the body of the bill, or of the signatures of the president and 
cashier, the rule is well settled ttiat no one is competent ta 
swear to its being either genuine or f oiged who is not acquainted 
with his handwriting from seeing the writer write, or from fre- 
quently seeing genuine specimens of it in the usual course of 
business; or, which is an American extension of the souroea Gf 
such knowledge by no means universal, from a comparison be- 
fore the jury of the questionable handwriting, with speoimena 
of it produced, admitted, or at least fully and clearly proved to> 
be not only genuine, but not got up for the occasion. It is evi- 
dent that he who is acquainted with the genuine handwriting 
only from printed descriptions and fac-similes is qualified ta 
swear with regard to it in none of these accustomed modes. 
Nor do we deem that the seventy-seventh section of the act 
concerning crimes and punishments (Dig. 1844, 892) vras de- 
signed to introduce so loose a practice in so grave a matter aa 
a criminal chaige of this degree as to allow persons to swear ta 
the handwriting on, or to the genuineness or falsity of, bank 
bills, who could not certainly say that they had any other knowl- 
edge of either than what they had derived from a bank reporter. 
The latter clause of that section, to which we have been referred,, 
is, ''but the testimony of any competent witness, who is ac- 
quainted with the handwriting of the person, or who has knowl- 
edge of the difference of true and counterfeit or altered bank 
bills, and who is skilled therein, shall be received as competent 
evidence to prove any such bank bill or note to be false, forged, 
counterfeited, or altered." After dispensing, in certain cases, 
with a supposed necessity, unknown to the common law, of 
calling the party whose name is forged to prove the fact, the 
section proceeds, in the words just quoted, to Efpecify the kind of 
proof to the foigexy which may be substituted. By the express 
words of the section, however, the witness must be ** compe- 
tent," and so far as knowledge of the difference between true 
and counterfeit bills is concerned, must be " skilled therein/* 

Aog. 1857.] Stats v. Bbowk. 17^ 

leaving the standard of both competfinaj and ■kill to be fixed 
by the courts under the general law. 

In conclusion upon this point, we do not think the witnesses 
to resemblance of f orgexy called by the govemment well skilled 
orcompetenty according to any rule of law known to us» to swear 
to the matter to which their testimony was reoeiTed; nor do we 
think it safe that a conyiction should rest upon testimony so 
loose and uncertain; and upon this ground there must be a new 
trial, as requested by the prisoner. 

This disposes of the motion; but as our attention has been 
called, at the argument, to another ground upon which it was 
made, we may as well dispose of it for the purposes of the new 
trial. We refer to the admission by the judge of proof that the 
prisoner, on the same day and at the name gambling sitting, 
passed as genuine spurious, as distinguished from counterfeit, 
bank bills, and that when arrested he had seyeral such bills, 
both signed and unsigned, in his possession, for the purpose of 
showing that he knowingly passed the counterfeit bill with the 
uttering of which he was charged. 

It is Texy true that no case that we have seen has gone to the 
precise point of the admissibiliiy of such testimony for the above 
purpose. The passing and possession of other cotmterf eit bills 
of the same denomination, or of other denominations, and pur- 
porting to be bills of the same or other banks, have been famil- 
iarly proved for the purpose of showing the 9cienier of the pris- 
oner in passing the particular counterfeit bill charged. The 
notion upon which the admissibiliiy of such testimony is based, 
according to an eminent writer on the criminal law of Scotland, 
is the tendency of such evidence to prove that the prisoner is a 
dealer in such paper, caught in the very act of disposing of it, 
instead of a casual receiver and innocent passer of the particular 
bill traced back to him: Allison on the Principles of the Crimi- 
nal Law of Scotland, 420. In this view, it does not seem to us 
to affect the bearing of the evidence upon the question of scienter 
whether the bills be spurious or counterfeit. The two crimes 
may be technically different; but they are of pxedBely the same 
kind in this, that they indicate the prisoner to be a dealer in 
bad bank paper, and so indicate that he did not innocently pass 
the counterfeit bill with the uttering of which he is charged. 
Within the principle, we think, therefore, that the evidence was 
admissible, and see no ground for this exception. 

New trial granted, to be had at the nest term of the court of 
eommon pleas in the county of Newport 

176 State v. McCune. [K I. 

Experts ooNoiBimro HANDWBimio, Oo Myr r EKO i r or: 8ee note to H€ 
mond V. Woodman^ 06 Am. Deo. 240-242. 

Gkkuihx Siokatubbs must bb Used ab Staniiabds ov Gompabibok; 
CcmmonweaUh ▼. EajBtman^ 48 Am. Deo. 606; Bdbar ▼. Homu^ 36 Id. 224. 


MtMn ▼. EcuUy, 62 Am. Deo. 171; Lunmg v. States 52 Id. 153; AAworth ▼. 
Kittridge, 59 Id. 178. and note 180-187. 

To Sustain Indioimbnt fOB Fobobbt, It nun bb Bboiwht wixrin 
Statute: StaU v. Morion, 65 Am. Deo. 201. 

Bank Ckbok mat be Desobibed as Obdbb vob Monby qb as Bill ov 
Ezohanoe, in indiotment for forgery: 8taU v. Morton, 65 Am. Deo. 201. 

Fobgeb ov Aooeptance ov Bank Chxok is Estopped vbom Dbntino 
authority of teller whose name is forged: Slate ▼. Morton, 65 Am. Dea 201. 

SESSION other forged or ooonterfeit notes or bank bills is admisnble to prove 
the $ekiUer: McCartney ▼. Staie, 56 Am. Deo. 610; 8iat$ ▼. WUUamo, 45 Id. 
741; see 8taU ▼. SpaMmg, 48 Id. 158. 

Statement in Indictment and Pboov or Incobpdbation ov Bank 
npon whioh writing ia alleged to have been foiged: See 8UUe ▼. Jone$, 86 Am. 
Deo. 257. 

Pboov ov Ezistenoe ov Bank is not Nbobssabt to Pboov ov Faxbrt 
ov FoBOED Note: McChurtneif v. State, 56 Am. Deo. 610^ note 612. 

What OoNVxnons Fobobbt: See note to Amoid ▼. Ooti, 22 Ann. Deo. 

State v. MoGunel 

[6 Bbodb Iuaxd. 60.1 

Etpbessed Dbtbbmination ov Felonious Intent, Aooompanibd bt Fobob 
SuwidENT TO Cabbt Intent INTO EwECT, makos a ease of taking by 
open violenoe or robbery, as distingoiahed from a seoret taking or mere 
inatohing by sarprise from the hand of another. 

Faot that Subpbise Aided Fobcb Employed by Pbibonbb will not pre- 
vent the force employed from aggravating the ease to one of robbery. 

Taking Watch vbom Pebson is Bobbebt, where the prisoner passed his 
arm throagh the arm of the proseoator and need violenoe sufficient to 
break the ribbon wateh-goard worn by the proseoator aboat his neek, at 
the same time exolaiming, " Damn yon, I will have your watohl " not- 
withstanding the force did not affiright, bat merely sntprised, the prose- 

Indiotmbnt cbaiging highway robbeiy in one oonrt and steal- 
ing from the person in another. Shortly before the oominiasion 
of the o£FenBe the prosecutor and the prisoner, who was a 
stranger to the proseoator, had been walking arm in arm, the 
prisoner having Tolonteered to conduct the proseoator to a place 
where he could prooure a carriage to take him home. Ti» 
prosecutor not sacoeeding in obtaining a oonTsyanoe in tha 

Sept 1857.] State v. McCune. 177 

prifloner's company, left him and proceeded alone in his aearoh. 
ShorUj afterwards lie was again joined bj the prisoner, who 
passed one arm through the arm of the prosecutor, and with hia 
other hand seized the watch of the pioeeeator, exckiming, 
"Damn jou, I will have your watch 1'' and fled with it, pursued 
by the prosecutor. The watch was in the prosecutor's Test 
pocket, and was attached to a silk ribbon watch-guard about 
half an inch wide, which passed about his neck. This watch- 
guard the prisoner broke in taking the watch. The prosecutor 
was asked whether he was in fear, and replied, " I was much 
afiaid that ho would get my watch." The Tcrdict was, guilty of 
highway robbery; but it appearing that this crime was not cog- 
nizable by a single justice, the yerdict was set aside, and the 
cause submitted to the full court upon an agreement that if 
the court were of the opinion that the above facts constituted the 
crime of highway robbery, as distinguiahed from that of stealing 
from the person, the prisoner should plead guilty to the former, 
otherwise to the latter crime. 

Hart, aUomey-general, for the state. 

Ripley, for the prisoner. 

By Ck)urt, Ames, C. J. We all agree that this ia a case of 
robbery, upon the ground that the felonious taking was effected 
by force. The passing by the prisoner of hia arm through the 
arm of the prosecutor, and the Tiolence used by him in break- 
ing the ribbon guard about the neck of the prosecutor, accom- 
panied by the prisoner's open announcement at the time of his 
determination to take the watch, make, in our judgment, a 
stronger case of taking by Tiolence than Bex y. Masons Buss. & 
By. 410, in which the taking was accompanied only by the force 
necessary, by two or three jerks, to break the steel guard-chain 
about the neck of Che prosecutor, without any announcement of 
purpose by way of threat, or any laying on of hands. The ex- 
pressed determination, at the time, of the felonious intent, ac- 
companied by the degree of force requisite to carry the intent 
into effect, make this a clear case of a taking by open violence, »» 
distinguished from a secret taking, or a mere snatching by sur- 
prise from the hand of another. If there be Tiolence sufficient 
to effect the evil intent, its degree does not seem to be of im- 
portance in characterizing the crime, as appears from the 
case mentioned by Holroyd, J., 1 Lew. 0. 0. 800, in which the 
judges held that the running of the prisoner against the person 
of another for the purpose of diyerting his attention whilst he 

Ax. Dao. Tou UX—M 

178 State v. McCune. [R L 

picked his pocket was sufficient force to make the taking rob- 
bery, since it was u^ed with that intent. The fact that surprise 
aided the force employed by the prisoner to enable him to ac- 
complish hiFi purpose will not prevent the force employed from 
aggravating the case to one of robbery. 

The prisoner was accordingly sentenced for the crime of high- 
way robbery. 

What CovsnruTES Bobbebt. — ^Robbery is a takmg of anything of any 
▼alue belonging to another from the person or presence of another, against 
his will, by means of force or fear, and with an intent to steal it. Lord 
Coke, Lord Hale, and Serjreant Hawkins define robbery as the felonious and 
violent taking of anything of Talae from the person of another, patting him 
in fear; and Mr. Bishop says that *' robbery is larceny committed by vio- 
lence from the person of one put in fear:'* Go. Inst. 68; I Hale P. C. 532; 1 
Hawk. P. 0. 212; 2 Bishop Grim. L., sec. 1156. But as robbery may be com- 
mitted either by violence or putting in fear, the above definition is the cor- 
rect one: 2 East P. G. 707; 4 Bla. Gom. 242; 1 Whart. Grim. K, sec. 
847; McDaniees Case, Post. 121; S. G., 19 How. St. Tr. 745, 806; UniUd 
StatfJi V. Jones, 3 Wash. 209; UnUed States v. iSimms, 4 Granch G. G. 618; 
United States v. Wilson, Baldw. 93; Clary v. State, 33 Ark. 561; Long v. 
State, 12 Ga. 293; Seymour v. State, 15 Ind. 288; Shinn v. State, 64 Id. 13; 
S. C, 31 Am. Kep. 110; StcUe v. Breioer, 53 Iowa, 735; Glass v. ComarMm- 
wealth, 6 Bush, 436; Commonwealth v. Humphries, 7 Mass. 242; McDaniel v. 
StaU, 8 Smed. & M. 401; S. G., 47 Am. Dec. 93; State v. Broderick, 59 Mo. 
318; State v. Oorham, 55 N. H. 152; StaU v. Burke, 73 N. G. 83; State 
V. Cowan, 7 Ired. L. 239; Commomoealth v. Snelling, 4 Binn. 379; Creufs 
V. State, 3 Goldw. 350; Hammond v. Stale, Id. 129. If the . indictment 
allege force and violence, it need not allege a putting in fear, and vice 
versa: Id. If force be used, it is not essential that the prosecutor should 
be either aware or afraid of the taking, as where the prisoner took hold 
of the prosecutor's cravat and pressed him against a wall, at the same 
time taking his watch without his knowledge: CommonweaJik v. Sndiing, 
4 Binn. 379. So fear alone, without the exhibition of actual force. Is suf- 
ficient: See ij\fra. In Texas, however, the rule, under the statute of that 
state, is, that where the taking is by assault there need be no putting in fear, 
but when it is by violence there must be a putting in /ear; and a conviction 
on the ground of a putting in fear cannot be sustained nnder an indictment 
for an assault and putting in fear, but the indictment must allege " violence 
and putting in fear." Without the allegation of violence in connection with 
the putting in fear, the indictment is defective: Kimble v. State^ 12 Tex. App. 
420; Williams v. State, Id. 240, modifying the rule of Wilson v. StaU, 3 
Id. 63, where it was held that whether the offense be oommitted by assault 
or by violence, the indictment must allege, in addition, a patting in fear of 
life or of bodily injury. 

Robbery is said to be a compound larceny composed of the crime of laroeuy 
from the person with the aggravation of force, actual or oonstmctive, naed in 
tne taking: 2 Bishop Grim. L., sec. 1 158; see Long v. State, 12 Ga. 293; Com- 
monweaUh v. Humphries, 7 Mass. 242; Crews v. State, 3 Goldw. 350; Ham- 
mond V. State, Id. 129; People v. Nelson, 56 Gal. 77. '*The indictment fot 
robbery charges a larceny, 2 Bisliop's Grim. Ih-oc., sec. 1002; Mathews v. 

Sept 1857.] . State v. McCunx. 179 

SUMie, 4 Ohio St 538» together with the aggravating itaatter which mekee it 
in the particular instanoe rohhery. For example, the property ie deecribed 
the same as io on indictment for larceny: Brtnnon v. StcUe^ 25 Ind. 403; Mc' 
Entee v. StcUe^ 24 Wis. 43; the ownership is in the same way set oat: Com- 
mmweallh v. Clifford^ 8 Coah. 215; Smedly v. State, 30 Tex. 214; People v. 
Fire, 21 GaL 344; Crem v. SUUe, 3 Goldw. 350; 2 Bishop's Crim. Proc, sec. 
1007. Then if the aggravating matter is not proved at the trial, the defend- 
ant may be convicted of simple Uuroeny: 1 Bishop Crim. L., see. 1055; State v. 
JenHas, 36 Mo. 372;** see tn/rOy " ConvictioQ of Laroeny," etc The property 
taken most be the subject of larceny: State v. Treader, 2 Oar. Law Bepoe. 
90; S. 0., 6 Am. Dec. 558 (what artidee are the subject of larceny, see note 
to State V. Hrnnee, 57 Id. 270, 277); 1 Whart. Crim. L., sec 846. And where 
a statute ma^es something the subject of larceny which was not so at common 
law, then it follows by legal consequence that it is robbery to take this thing 
f^m another person violently or by patting him in fear: 2 Bishop Crim. L., 
sec 1160; see Bex v. Cannon, Rass. & By. 146; Begina v. Hemming$, 4 F. & 
F. 50; McEntee v. State, 24 Wis. 43; SlaU v. Carro, 26 La. Ann. 377. 

We have used the expression "actual or constructive force." It is a 
phrase of occasional occurrence in the books. Actual force means personal 
violence, and occurs where injury is done to the person, or where there is a 
struggle to retain poasession of the property: Long v. State, 12 Ga. 293. Con- 
strnctive force is a putting in fear. When one is put in fear of an injury to his 
person or his property, or to his character, by a charge of an unnatural crime, 
this is constructive force: Long v. Stale, 12 Ga. 293; see also Skinn v. Stale, 
64 Ind« 13; S. C, 31 Am. Rep. 110; Commonwealth v. Humphriee, 7 Mass. 
242; Hammond v. State, 3 Coldw. 129; Crewe v. StaU, Id. 350. The prosecu- 
tion nmst establish guHt beyond a reasonable doubt: People v. Core, 59 Cal. 
390. In some states statutes make a special crime of stealing from the person 
where the taking is not sufficiently aggravated to make the offense robbery: 
See Woodard v. State, 9 Tex. App. 412. In the United States sUtutcs, 
where the word " rob" is used it is used in its common-law sense: Uniud 
States V. Wileon, Baldw. 03; United States v. Palmer, 3 Wheat. 610; UnUed 
States V. Jones, 3 Wash. 209. 

The definition of robbery at the beginning of this note contains statements 
of the essential facts constituting the crime of robbeiy. These statements 
will be treated in the order in which they occur in that definition, as follows: 
1. The asportation; 2. The thing taken and its value; 3. The ownership; 4. 
From the person or presence of another; 5. Against the will of the prosecu- 
tor; 6. The force; 7. The fear; 8. The animius furandu 

Asportation. — ^Thero must be an actual taking and carrying away: 2 Bishop 
Grim. L., sec 1161; 1 Wbart. Crim. L., sec 849; Bex v. FarrtU, 1 Leaoh, 
S22; CommonweaUh v. Clifford, 8 Gush. 215; State v. CurUe, 71 N. C. 56; Jor- 
dan V. CommonweaUh, 25 Gratt. 94a ** If A have his purse tied to his girdle 
and B assaults him to rob him, and in struggling the girdle breaks and the 
purse falls to the ground, this is no robbery, because no taking. But if B take 
«p tlie purse, or if B had the purse in his hand and then the girdle break, 
and striving lets the purse fall to the ground and never takes it up again, this 
is a taking and a robbery: " 1 Hale P. C. 533, citing 3 InsL 69; Dalt. Just, 
c 100; Cromp. 35. Where the defendant snatched a ]ady*s ear-ring from her 
ear, in so doing tore her ear, and left it in the ** curls of her hair,*' this was 
a sufficient asportation: Bex v. LapUr, 1 Leach, 320; but see the authorities 
on *' snatching," %i\fra. There must be a carrying away. Thus, where the 
prosecutor upon command dropped the property, but the prisoner was ar> 

180 State v. McCunx. [R. L 

rested befora he ooold teiie it, it wis not lobbny: ite ▼. thrreU, Id. SK 
An indiotment lies for the final asportation, as where the owner dropped ac- 
cidentally the artiole taken, and the prisoner picked it np and refused to 
deliver it, whereupon a straggle ensaed for its possession, this straggle will 
be a rednotlon to possession by the owner, and its final asportation by force or 
fear will be robbery: State v. Trexler, 2 Car. Law. Bepos. 90; S. C, 6 Am. 
Dec. 658. But the crime is complete, though the prisoner sfterwards return 
the property taken: 1 Hale P. C. 533; Pea^B Ocue^ 1 Leach, 228. The aspor- 
tation need not be alleged: Terry v. State, 13 Ind. 70. 

Tnnro Takbn and its Value. — ^It must be the subject of larceny, and 
therefore the taking of a bank note is not robbery: State v. TWaaler, 2 Gar. 
Law Repos. 90; S. C, 6 Am. Dec. 558. But in Ohio bank notes are " per- 
sonal property" within the robbery statute: Turner v. State, 1 Ohio St 422. 
Something must be actually taken: 1 Hale P. C. 532; Jamu v. State, 53 Ala. 
380. Still, where one forces another by threats or violence to take less than 
the value of his goods, this is robbery: Rex v. Simons, 2 Esst P. C. 712; 
Spencer's Case, Id. The thing taken must be of some value. Therefore to 
obtain from a person his promissory note by threatening with a knife held to 
his throat to take his life is not a felonious stealing of the note, for it never 
was of value to or in the peaceable possession of such person: Rex v. PhUpoe^ 
2 Leach, 673; S. C, 2 East P. C. 599; see also Rex t. Edwards, 6 Car. & P. 
515; S. C, Id. 521; Regina v. Smiik, 2 Den. Cr. a 449; note to State v. H<mes^ 

57 Am. Deo. 276. But its value is immaterial, and however insignificant, it is 
robbery to take it: Regina v. Morris, 9 Gar. & P. 349; Rex v. Clark, Rubs. It 
Ry. 181; Rex v. BingUy, 5 Car. & P. 602; WiXUams v. State, 10 Tex. App. 8; 
Wedey v. State, 61 Ala. 282; James v. StaU, 53 Id. 880; State t. HowerUm, 

58 Mo. 581; StaU v. Burke, 73 N. C. 83; Creum v. State, 3 Goldw. 350; Ham- 
mond v. State, Id. 129; Clary v. State, 33 Ark. 561. Lord Hale says the 
taking is robbery whether the thing taken be above or under the value of one 
shilling: 1 Hale P. O. 531. It must be of some value, but need not be of the 
value of the smallest coin in the realm at least, that is, of a farthing : Regina t. 
Morris, 9 Oar. & P. 349. If it is of value to the prosecutor alone, it is sufficient; 
Rex V. Bingley, 5 Car. & P. 602 (memorandum of debt) Rex v. OKorib, Buss. It 
Ry. 181. It is not necessary to prove that the property nad a specific pecuniary 
^ne. It is sufficient that it was not worthless, that it was not wholly unfit for 
use, or that the owner kept and preserved it ss of value to him, although its 
pecuniary value was nominal, insignificant, or incapable of estimation: Jackmm 
v. estate, 69 Ala. 249; ./afiiM T. iStote, 53 Id. 880. It is not necessary to allege 
a value for the property tsken, since force or fear is the main element of the 
crime: StaU v. Burhe^ 73 N. C. 83; WUliams v. State, 10 Tex. App. 8 (sheep); 
CommanweaUh v. Brooks. 1 Duv. 150; James v. State, 53 Ala. 380 (sack of 
flour and a jug of whisky); contra: Jackson ▼. State, 69 Id. 249. The verdict 
need not specify the %'alne of the property taken: StaU v. /Totoerfoii, 58 Mo. 
581. The genuineness and value of the coins chai^ged to have been taken is 
sufficiently shown by the testimony of the penon robbed that he was robbed 
of two hundred and forty-five dollars in gold, mostly in twenty-dollar gold 
pieces, but partly in ten and ^^^^ dollar pieces, and also that he was robbed of 
forty-five or fifty dollars in silver dollars- State v. Hedin, 21 N. W. Rep. 645. 

OwMBBSHiP. — ^A person cannot be guilty of robbery in taking his own prop- 
erty, whatever other offense he may commit in the taking: Smsdly v. Slate, 30 
Tex. 214; Barnes v. Stat^^ 9 Tex. App. 128; People ▼. Viee, 21 Gal. 344. Ua 
may commit larceny ia so doing (note to StaU v. Homes, 57 Am. Dec 277, 
278), or trespass. A creditor who compels the.payment of his debt by the usa 

Sept 1857.] State u McCuns. 181 

of Tioleiioe is not giilty of robbery, ainoe there ie do ambmu/wroMtU: Begima 
▼. HemmimgB^ 4 F. ft F. 50. Indeed, the Uck of the fehmiooe intent is the 
rsMon that the taking of one^s own property osnnot be robbery. 80 where 
the taking is under a bona Jide impression of ownership in the prisoner, it Is 
not robber}': See i^frcL^ '*Animns FnrandL" Therefore it mnst be ohsiged in 
the indictment that the thing taken was the property of another than the 
prisoner: People v. Vice, 21 CsL 344. The indictment mnst by appropriate 
averment show that the p ro p e rty taken belonged to some person other than 
the accnsed, or that the person deprived of its possession was entitled thereto 
as against the accnsed: Baimu ▼. StaU^ 9 Tex. App. 128; Cc mm o mw eaUk v. 
Cl^fbrdj 8 Cash. 215. It should state clearly the ownership of the property, 
ss well as the name of the person from whom it was taken: Smedly v. Staie^ 
30 Tex. 214. But an indictment averring that the property taken belonged 
to another than the person robbed is not defectiTe becaose it fails to allege 
that it was taken against the wiU of the owner, and also fails to allege the 
character of the possession of the person from whom it was taken: People v. 
Skmier, 28 CaL ^0. Proof that the property was taken from the person of 
snother without any claim of right on the part of the defendant is sufficient 
proof of ownership: People v. NeUoTi, 56 Id. 77. The property taken need 
not belong to the person robbed. As sgainst the robber, be is the owner of all 
goods in his possession and custody: Brooke v. People, 49 N. J. L. 436; S. C, 
10 Am. Bep. 308w But in Cnwe t. SkOe, 3 Coldw. 350, it was said that the 
pfoperty must be proved to belong to the person named in the indictment as 
the owner. Goods stolen out of possession of a bailee may be described as the 
piope t ly of the bailor or of the bailee, although the goods were never in the 
rsal owner's possession: Staie v. Oorham, 55 N. H. 152. 

Frox PxRaoir ob Pbxsekcx or Anothxs. — ^Primarily, the taking must be 
from the person of the party robbed, and the indictment must so allege: Rea 
V. PhUpoe, 2 Leach, 673; S. C, 2 East P. G. 599; People v. Beek, 21 OaL 
385; Steffor v. Stale, 39 Ga. 583; Seynumrv, StaU, 15 Ind. 288; StaU v. Leigh^ 
Con, 56 Iowa, 505; see StaZe v. Kegan, 62 Id. 106; KU v. StaU, 11 Humph. 
167. And if the indictment merely state that the taking was from "another 
person, " it is fatally defective: People v. Beck, 21 GaL 385. But a taking in 
the owner^s presence or view is constructively a taking from his person, but 
the owner's presence is at least necessary: Bex v. /WmciSp 2 Stra. 1015; 
a C, 2 Com. 478; Crocker v. 8UmU, 47 Ala. 53; Jamee v. Stale, 53 Id. 380; 
Clary V. State, 33 Ark. 561; Hope v. Ptople, 83 K. Y. 418; S. C, 38 Am. 
Rep. 460; Ttmyar v. State, I Ohio 8t 422; Staie v. Jenkine, 36 Mo. 372; Uniud 
States V. Jonee, 3 Wash. 209; Crewe v. State, 3 Coldw. 350; Hamvumd v. 
State, id. 129. '* If a thief," says Lord Hale, '*oome into the prssenoe of A, 
and with violence and putting A in fear drives away his horse, cattle, or 
sheep," the offense is robbery: 1 Hale P. a 533. And Mr. East states the 
doctrine thus: "It is sufficient if the property be taken in the presence of the 
owner; it need not be taken from his person, so that there be violence to his 
person or putting him in fear; as where one, having first assaulted another, 
takes away his horse standing by him, or having first put him in fear drives 
bis cattle out of his pasture in his presence, or takes up his purse which the 
other in his fright had thrown into a bush, or his hat which had fallen from 
his head: " 2 East P. G. 707. *'0r robs my servant of my money before my 
face:" 1 Hawk. P. C. 214, sec 5. Where by intimidation the owner is com* 
polled to open his desk from which his money is taken or to throw down 
his pnrse which the rohber picks up, it is robbery: United Stales v. Jones^ 3 
Wsah. 200. 216. Where a person traveling in company with the owner is in* 

182 State v. McCune. [R L 

truted with the goods taken to help carry them, and by violenoe feloniously 
exerted against the person of the owner carries off the goods, he is gailty of 
robbery; for his possession of the goods np to the time of the felonious vio- 
lence is constmctiTely the possession of the owner, and the taking in his pres- 
ence is constructively from his person: James v. Staie^ 53 Ala. 380. It has 
been held that where the property taken belonged to the person assaulted, 
but was in the possession of another person who was walking with him and 
carrying the property, and this person threw it down and came to the assist- 
ance of the owner, whereupon the thief carried it away, the offense was not 
robbeiy, because the property was not in the custody of the prosecutor: Bex 
FolUowb, 5 Car. & P. 508. But in view of the above authorities, this case is 
perhaps hardly authoritative. Stealing a watch from the room in which the 
owner was sleeping was not stealing from the person, though doubts were ex- 
pressed as to whether it might not have been so had the owner been awake: 
JRex V. HamiUon, 8 Id. 49. Under the Pennsylvania statute, it is not neces- 
sary, when the word "rob" is used, to allege that the property was taken 
from the body of the prosecutor: Acker v. CommonweaUhf 04 Pa. St. 284. 

Against Will of pROSEcnroR. — ^The taking must be against the will of 
the person robbed: Bex v. McDaniel, Fost. 121, 128; S. C, 19 How. St. 
Tr. 745, 806; People v. Chttgh, 59 Gal. 438; Seymour v. State, 15 Ind. 288; 
Long V. State, 12 Ga. 293; StaU v. Jenkins', 36 Mo. 372; State v. Johnson, 
PhiU. L. 140. Where the prosecutor consents to be robbed. People v. Clougk, 
supra, Bex v. McDanid, supra^ simply for the purpose of prosecuting the 
robber, it is not robbery: Bex v. Fuller, Russ. & Ry. 408; see also 1 W^hart. 
Grim. L., sees. 141 et seq.; but see 1 Bishop Grim. L., sec. 438. Although a 
consent to be robbed merely for the purpose of prosecution is not robbery, yet 
in Norden's Ca^e, Fost. 129, a robbery was committed. Norden set out in a 
post-chaise to accompany a stage-coach and apprehend a highwayman who 
had frequently robbed the coach. He put a little money and a pistol in his 
pocket. When the highwayman met them and presented his weapon, Nor- 
den delivered up his money, and then with the assistance of others captured 
the robber. The prisoner was convicted for a robbeiy upon Norden, and this 
was not a case of robbery by consent, for there was no collusion between 
Norden and the prisoner: Norden* s Case, supra, "At the same time, as in 
the parallel case of rape 'against the will,' if there be force, it is to be treated 
as convertible with 'without consent:'" 1 Whart. Grim. L., sec 855; and 
therefore where the defendant knocked the prosecutor insensible, and then 
robbed him, the robbery was complete: Bex v. Lapier, I Leach, 320; S. G. , 
Fost. 128; Bex v. Hawkins, 3 Gar. & P. 392. So where the defendant grasped 
the cravat of the prosecutor, and pressed him against a wall, and in this posi- 
tion took his watch without his knowledge: Commonwealth v. SnelUng, 4 Bitui. 
379; see Mahoney v. People, 3 Hun, 202. Though the person assaulted deliv- 
ered with his own hand the thing taken to the assailant, the taking may still 
be robbery: 1 Hale P. G. 533. And though the delivery of the property seem 
to be voluntary, yet if it is shown to have been from fear, the offense is still 
robbeiy: Long v. StcUe, 12 Qa. 293. When the indictmeot is complete in other 
respects, it need not allege that the taking was against the will of the prose- 
cutor: Ttrry v. SiaU, 13 Ind. 70; People v. ShuUr, 28 GaL 490; contra: KU 
v. State, 11 Humph. 167. But so under the statute of Pennsylvania: Acker 
V. Commonweaith, 04 Pa. St. 284. See also upon this subject the head 
** Fear,** infira. 

FoacB o& YioiMsaK.—Must Precede or Accompany Taking, — ^When tha 
taking is acoomplished by foron or violence, the force or violence must prs 

Sept 1857.] State v. McCune. 183 

cede or aooompMiy the taUng: 8hiim v. State^ 64 Ind. 13; 8. 0., 31 Am. Rep. 
110; People Y. MeOvniy^ 24 Hon, 62; StaU t. JoM^ 6 Jooet L. 163; & C, 
69 Am. Dec. 777; StaU v. JenHns, 36 Mo. 372; State ▼. Ikal, 64 N. C. 
270; Bex v. CfnoeU, I Car. & P. 304. Knocking a pnne ont of one's hand 
and then putting him ont of a aaloon is not robbery: People ▼. McOinlff, 
mpra. Where the prisoner picked the person's pocket, wherenpon a acnffle 
ensued, in vhich the proeecntor was thrown down, it was held to be only 
larceny: Slate t. JoAii, supra. 

Xahire qf Force Necessary. — The force nsed mnst be suflBciently violent 
to overcome the resistanoe offered, or to prevent resistance throngh fear: 
StaU V. John, 5 Jones L. 163; 8. C.«69 Am. Dec. 777; StaU v. Gorham, 65 
N. H. 152; MeCloshey v. People^ 6 FU'k. Cr. 299; People v. MeOintp, 24 Han, 
62; Jackaon v. StaU, 69 Ala. 240. 

The force nsed must be a force showing an intent to overpower the party 
and prevent his resistanoe; and if the force is nsed merely to get possession 
of the property, it is not highway robbery: Rex v. OnosU, 1 Car. & P. 304. 
If the force nsed be nsed only to get possession of the property, or to effect an 
escape, it is not sofScient: StaU v. John, 5 Jones L. 163; S. C., 69 Am. Dec 
777 ; Fanning v. State, 66 Ga. 167. And it is erroneous to instruct that the felo- 
niou» taking with violence sufficient to constitute an assault and battery 
would make out the crime of robbery: McCloskeij v. People, 5 Park. Cr. 
299; bat overcoming a resistance, however slight, is sufficient violence: StaU 
V. Gorhasn, 55 N. H. 152; and where a struggle ensues for the possession of 
the property, it is sufficient: StaU v. J*rexler, 2 Car. Law. Repos. 90; S. C. , 
6 Am. Dec. 558; Jackson v. StaU, 69 Ala. 249; Davies' Coat, 1 Leach, 290; 
S. a, 2 East P. C. 709; see tr^ro, '* Snatching is not Robbery.*' 

But although the force used does not overcome resistance, still if it pre- 
vents it, not because of any fear on the part of the prosecutor, but because of 
his surprise, or because he could not have made any resistance had he so de- 
sired, the taking is robbery; and this illustrates the rule that fear is not es- 
sential to the crime of robbery; the prosecutor need not be even aware of the 
taking. Thus if foroe be used, it is not essential that the prosecutor should 
be either aware or afraid of the taking; as where the prisoner took hold of 
the prosecutor's cravat, and pressed him against a wall, at the same time 
taking his watch without his knowledge: this was robbery: CcmMnonweaUh v. 
Suelling, 4 Binn. 379. As the complainant was entering a horse-car, an accum- 
pUce of the prisoner threw his arms around the complainant's neck, pulled 
him towards him, and removed a wallet from his pocket: this was robbery: 
MaJtjoney v. People, 8 Hun, 202. Running against a person to divert his at- 
tention, and then picking his pocket, is a force sufficient to constitute rob- 
bery: Afwnymous, 1 Lew. C. C. 300. Where several combine to push oue 
rudely about, and whUe his attention is thus drawn away take his money, it 
is robbery: Seynumr v. StaU, 15 Lid. 288. Surrounding a person no as to 
render assistaace hasardous or vain is a force sufficient to .constitute robbery: 
Coat <^ Hughes, 1 Lew. C. 0. 301. If a bailiff handcuff a prisoner, under 
pretense of carrying him to prison with greater safety, and then take his 
money, this is robbery: Cfaseoigru^s Case, 1 Leach, 280. 

The fraudulent and felonious taking of property by means of a trick or 
contrivance, but unaccompanied by violence, does not constitute robbery: 
Shinn v. StaU, 64 Ind. 13; 8. C, 31 Am. Rep. 110; Huber v. StaU, 57 Lid. 
341. And even where a struggle for the possession of the property ensues 
after the thief so obtains the possession of it there is no robbery: StaU v. 
Deal, 64 N. C. 27a 

184 State v. McGcjne. [R I. 

WheD the petwm robbed was intcudoated and insensible at the time, aod no 
riolenoe was shown, the taking was not robbery. The evidence showed that 
the accnsed was fonnd standing astride the body of a man who was lying oi> 
khe groond drank and nnconsoioos; that he had taken from the pockets of the 
drunken man a pocket-book and other property, and in so doing had tumeit 
the pockets inside out: Bremum v. Slate^ 25 Ind. 403. Taking money to de- 
sist from a rape is robbery: Bex v. Blaekham, 2 East P. C. 711. To make 
robbery a capital offense under the statute of Massachusetts, it is sufficient 
that the party be armed with a dangerous weapon, with intent to kill or vaaim. 
the party assaulted by him in case such killing or maiming be necessary to 
his purpose of robbing, and that he have the power of executing such intent: 
Comnumweaith v. iforttii, 17 Mass. 359. The person assaulted may resist 
with as much force as is necessary to ropel the force used against him: Peo- 
ple y. Payne, 8 CaL 341; Johnson v. PaUenon, 14 Conn. 1; see Curlia v. 
Hvbbard, 1 Hill (N. Y.), 396; S. C, 4 Id. 334. 

Snalehmg is not Bobbtry, —The mero sudden taking or snatching the prop 
erty from the person of another does not constitute robbery: Bex r. Gray, 2 
East P. G. 708; Bex v. Steward, Id. 702; Bex v. Homer, Id. 703; B^ v. 
Macanley, 1 Leach, 287; Bex v. BMa, Id. 290; Bex v. Baler, Id. 290; S. C, 
2 East P. 0. 703; Begina v. WaUe, 2 Oar. & Kir. 214; Bex v. OwM, 1 Car. 
& P. 304; Jackeon v. State, 69 Ala. 249; Fanning v. Stale, 66 Ga. 167; Shinn v. 
Stale, 64 Ind. 13; S. 0., 31 Am. Bep. 110; BomoU v. State, 35 Ind. 460; Com- 
monvfeaUh v. Ordway, 12 Gush. 270; Staley, Trexler, 2 Gar. Law Bepos. 90; S. C., 
6 Am. Dec. 558; McClosbey v. Pef*ple, 5 Psrk. Gr. 299; People v. HcUl, 6 Id. 642; 
PeopU V. McQmty, 24 Hun, 62; Johnmm v. CommcmweaUh, 24 Gratt. 556; 
United States v. ^tmms,4GranchG. G. 618; eonlra, under statute of Iowa: StcUe 
▼. Carr, 43 Iowa, 418. But this offense constitutes stealing from the person 
under the statutes of some states: Fanning v. State, 66 Ga. 167; IVoodard 
V. State, 9 Tex. App. 412; Johnson t. Conunontoecdih, 24 Gratt. 555; Begina 
▼. Walls, 2 Gar. k Kir. 214. The reason is that the force used is not suffi- 
cient to overcome or provent any resistance or to put the owner in fear, nor 
can it be inferred that there was an intention of taking violently in the face 
of a resisting force: See 1 Wbart. Grim. L., sec. 854. But though the thing 
be snatched, if there is in addition a violence used upon the person, or a put- 
ting in fear, it will be robbery. Thus, if a struggle immediately ensue to 
keep possession of the property, and the thief overcome the resistance, then 
the violence used is that violence sufficient to constitute this crime: See Jack- 
son V. State, 69 Ala. 249; State v. Trexler, 2 Car. Law Bepos. 90; S. C, C 
Am. Deo. 558; Bex v. Homer, 2 East P. G. 703; Chicles Com, Id. In Davies* 
Case, 1 Leach, 290, S. C, 2 Esst P. G. 709, the prisoner snatched at a sword 
hanging at a gentleman's side, but the gentleman, perceiving the intentiona 
of the thief, instantly laid tight hold of the scabbard, whereupon a struggle 
ensued, which ended in the sword being taken away. The crime was rob- 
bery. But if the struggle occurs after the taking, and the force used is only 
to effect an escape, the sudden taking does not become robl)ery: See Stal^ v 
John, 5 Jones L. 163; S. C, 69 Am. Dec. 777. Where a thief slippetl hi» 
hand into a lady's pocket and got his finger caught therein, and she felt the 
han<l, and turning, after he had secured her purse, saw him looking uncon- 
cernedly at the houses near by, and caaght him by the coat, which he left 
with her in his struggle to escape, it was held that the crime was larceny 
from the person, though the lady's pocket was torn when the thief extracted 
his hand: Fanning ▼. State, 66 Ga. 167. 

But if there is any violence done to the person robbed at the time of the 

Sept lasT.] State v. McCuhk 185 

snatching, the ttking li robbflry: ^kote v. Trexter, 2 Gkr. lAwEepot. 90; S. C, 
9 Am. Deo. 568. The prinoer mfttohecl a wmtch-ohaln with each Tioleiiue u 
to tear it «way from the watch and from the button-hole. The owner tried 
to reoo^er the chain, bat fuled* the defendant atriking him» and making hit 
eMape. Thia waa robbery: State v. Brodaiekf 69 Ma 818. Snatching a 
diamond pin bom the heed-dram oi a lady, with moh foroe aa to remoTO the 
pin with a part of the hair, is aofficient Tiolenoe to oonatitote robbery: Rex v, 
Ifoare^ 1 Leach, S3S. To force an ear-ring from the ear of a lady ia aofficient 
Tiolence to cooatitato robbery, and to remoTe it from the ear into her hair a 
■efficient canying away: Bex v. Lapier^ Id. 320. The watch wae faatened 
by a ateel chain, which waa worn aboat the proeeontor'a neck, and in taking 
the watch the priaoner need force aofficient to break thia chain. This waa 
robbery: Bex t. Jfoaon, Boaa. A By. 410. The principal caae ia alao aothor- 
ity to thia effect. In that caae a iSlk ribbon watoh-goard waa broken. Bot 
in Bremum v. Ante, 25 Ind. 403, MamnCe Cam^ Boaa. A By. 418, and the 
principal caae aro cited, and aaid to go to the "verge of the law*' in thna 
holding. The caae of UviUi BUdee ▼. Bnnime^ 4 Cranch a C. 618^ ia, how- 
ever, directly to the contrary. Thero a watch waa anatched and a ribbon 
gnard broken, bat it waa held no robbery. 

Whenerer reaiatanoe ia prevented by threata of actoal violence, creating a 
reaaonable approhenaion of it, the anatehing becomea robbery: Jaeketm v. 
State, eO Ala. 240. Bot if the patting in fear ia done after the taking, it ia 
not robbeiy: Bex v. ffamutn, 2 Beat P. 0. 736. And if reaiatanoe be pre- 
vented by the oae of actoal violence, the anatehing becomea robbery: Cam" 
wmtweaUh v. SmUmg^ 4 Binn. 378; Makaneif v. Peaple^ 3 Hon, 202. 

FxaB. — See mpro, '^Againat Will oi Proaeootor." Though no violence ti 
need, robbery may be committed if the taking ia acoompliahed by meana of 
fear inapired in the peraon robbed: See caaea eupra at the beginning of tbie 
note, cited to the effect that robbery may be committed by force or fear. 
Bot an inatrnction aothoriaing a verdict opon proof of a robbery by force oi 
violence, thoogh the indictment alleged merely a patting in fear, and tbie 
charge waa not proved, ia erroneoaa: OUum v. Commoaioeo/^ 6 Bash, 436. 
Thia fear may be of three kinds: fear of injury to the pereon, to the property, 
or to the character: Long r. State, 12 Oa. 203; Bex v. Beane, 2 Leach, 619. 

Ffsar muM Precede Taking^ hut majf Contuiae.— The fear moat be preaent 
and immediate to the peraoo robbed at the time of the taking, and not follow 
it or be inapired after the taking is complete: Staie v. Jenkine, 36 Mo. 372; 
Ctar^ V. Suae, 33 Aric. 561; Bex v. ITarman, 2 East P. C. 736; Bex v. Oray, 
Id. 708. Whero the priaoner picked the pocket of the proeecotor by 
eteaTth, and when the property waa demanded back, menaced the proeecotor 
«nd then went away with the property, this waa larceny only: Bex v. Har* 
man. Id. 736. 

The fear onoe inaprad may continae ao aa to make a aobaeqoent taking 
robbery. " If A aaaaolte B and bids him deliver his porae, and B delivers it 
nocordingly, thia ia a taking, and ao it ia if Brefoae, and then A praya him to 
give or lend him money, which B doth accordingly, thia is robbery, for B doth 
it nnder the aame fear; ao it ii if B throw lua porse or cloak in a bosh and A 
takes it ap and carriea it away; ao, if B flying from the thief leto fall HLb liat 
and the thief take it and carry it away, for all is the effect of the same fear: *' 
1 Hale P. C. 633w "If thieves come to rob A, and finding little abont him, 
enforoe him by menace of death to swear opon a book to feteh them a greater 
Bom, which he doth accordingly, this is a taking by robbery, yet he was not 
in conaoienca bound by each compelled oath, for the fear coDtinoed, thoogh 

186 State v. McCune. [& L 

the oftth bound him not: " Id. 632. The property need not be delivered at 

the same time with the assault, or the patting in fear, bat if it is delivered 
afterwards, and whilst the fear or apprehension of danger oontinues, the whole 
transaction is one transaction, and may be robbery: Long v. State, 12 Ga. 293. 

Wliot Fear Sufficient, — ^The menace mast be sach as to excite a reasonable 
apprehension of danger: 2 Bishop Crim. L., sec. 1170; 2 East F. C. 713; 1 
flawk. P. C. 214, sec. 8; Long v. State, 12 Ga. 293. If the transaction be 
attended with sach circa mstanoes of terror, such threatening by word or 
gesture, as in common experience are likely to create an apprehension of 
danger, and to induce a man to part with his property for the safety of his 
person, he is puc in fear. Actual fear need not be strictly and precisely 
proved, for the law in odium spolialoriA will presume fear where there ap- 
pears to be just ground for it: Long v. StaJte^ supra. An instruction that 
it is not necessary that the meaus used to put a party in fear should be 
such as to put in fear a man used to the ways of the world is correct: Stale 
V. Carry 43 luwa, 418. A fear of personal violence is sufficient though the 
prosecutor did not at the time know of the taking: CommontoeaJUh v. Snelling^ 
4 Binn. 379. Where a lawful pretense is used, the taking is still robbery, as 
where cheeses carried along the highway were seized on pretense of a want of 
a permit when none was in fact necessary: Merriman v. Hundred of Chippen' 
ham, 2 East P. C. 709. 

Fkar may be Proved by Prosecutor. — The prosecutor may testify to his be- 
lief that he would be shot if he did not surrender the property, though gen- 
erally a witness cannot state his opinion or belief: Dill v. State, 6 Tex. App^ 
113; Long v. StcUe, 12 Ga. 293. 

Fear o/ Injury to Property — Extortum by Mob, — A giving of money or goods 
Qpon a demand by one of a mob, accompanied with a threat to tear down or 
bum down the owner's house, or to lay waste his premises, is robbery: Rex v. 
SimoTw, 2 East P. C. 731; Rex v. Taplin, Id. 712; Rex v. Brown, Id. 731. 
[n Rex V. Spencer, Id. 712, the prosecutor, under fear of mob violence, sold the 
mob com worth thirty -eight shillings for thirty shillings. In Rex v. Astley, 
Id. 729, the threat was to bring a mob from a neigliboring town, and there 
was no fear of personal violence, but only for the safety of the house. Rex v. 
Winkworth, 4 Car. & P. 444, was an indictment for robbery. In that case 
the prisoners went witli a mob to the prosecutor's house, and one of the mob 
went up to the prosecutor and Very civilly, and as the prosecutor then believed 
with good intention, advised him to give them something to get rid of them 
and prevent mischief, and he in consequence of this gave them money, and it 
was permissible to show animus farandi, by evidence of similar demands for 
money at other places on the same day by the same mob. 

Fear qf Injury to Character by Threatened CJiarge of Sodomy. — It Is well 
settled in England, and perhaps in America, that where one succeeds in extort- 
ing money from another by threatening to charge him with or prosecute him 
for sodomy, this is robbery, though there be no other fear than that of the 
loss of character: Rex v. Egerton, Russ. & Ry. 375; Rex v. Cannon, Id. 146; Rex 
V. DonaUy, 1 Leach, 193; S. C, 2 East P. G. 715; Rex v. Uichman, 1 Leach, 
278; Rex v. Harrold, 2 East P. C. 715; Rex v. Jones, 1 Leach, 139; S. C., 2 East 
P. C. 714; Rex v. Mmstead, 2 Russ. Cr. 128; People v. McDanUls, 1 Park. Cr. 
198 (sexual connection with a mare); Long v. State, 12 Ga. 293; Britt v. State, 7 
liumph. 45. The rale applies to a threatened charge of sodomy alone, for it is 
the loathsomeness of this particular offense that causes one upon a mere threat 
to prosecute him therefor to yield up his money or goods: Long v. State, 12 Ga. 
293; see also People v. McDaniels, 1 Park. Cr. 198; BriU v. State, 7 Humph. 

Sept 1857.] State v. McCunil 187 

45. Though this ii well established by the English law, and is reoognised in 
this eoantiy, it is rather of historical than pracstieal interest. Such a case 
woald eeldom arise at the present day, when the law against blackmailing is 
so severe, and the system of cross-examination so perfected, tiiat the criminal 
woald have little hope, and the threatened person little fear of a conviction 
upon snob a charge. Furthermore, no man with a standing in society Biiflj< 
•dently prominent to tempt the woold-be extortioner fears at the present Jay 
injury to his reputation from such a charge heralded from such a source. It 
is from these and other reasons perhaps that the cases upon this subject are not 
of late occurrence. Mr. Bishop regards this doctrine as an " ezcrcscenoo 
upon tbe law. '* And it does seem unfounded in principle, though hardly more 
«o than the cases on mob violence. The distinguishing feature of robbery is 
that it affiaots the corporeal person of the party robbed. The taking must be 
from the person, actually or constmctively. And it is consummated by means 
of personal violence or the fear of personal violence. Now, it is a useless sub- 
tilty to strain for an analogy between these two excepted instances and fear 
of personal violence. They are to be regarded in principle as exceptions or 
additions to the law of robbery, but at least that, in view of the numerous 
aathoritiee supporting them. Concerning the latter exception relative to the 
threatened charge of sodomy, which is based upon the horrible nature of the 
crime, it may be further remarked that if it be regarded as law, it should not 
be confined to this charge, since equally or more loathsome acts are imagi- 

The crime will not, however, be robbery when the property is parted with 
upon a threatened charge of sodomy, not from fear of loss of character, 4}ut for 
the pu rpose of prosecuting the ofifender. The fear is essential to the crime : Bex 
V. Fuller, Russ. & By. 408. So where upon the trial the prosecutor swore that 
he was not in fear of violence to his person or injury to his character, the pris- 
oner could not be convicted: JUx v. Heane, 2 Leach, 619; S. C, 2 East P. C. 
734. Obtaining money from a woman upon a threat to accuse her husband 
of an unnatural crime is not robbery: Bex v. Edward^ 1 Moo. & R. 237; S. C, 
5 Car. & P. 518. 

The guilt or innocence of the party threatened to be charged is immaterial. 
In either case, it is robbery to extort money in this way, whether the party 
robbed be innocent or guilty of the crime: Long v. Staie, 12 Ga. 293; Rex v. 
<kardner, I Car. & P. 479; Regina v. CrackneU, 10 Cox C. C. 408; liegina v. 
Richards, 1 1 Id. 43. But in tbe last case it is said that the guilt is material in 
considering the question whether the intention of the prisoner was to extort 
money or merely to compound a felony. It is not necessary that tbe threat 
should be in unequivocal language, if understood by the prosecutor as a threat: 
PeopU V. McDaniels, 1 Park. Cr. 198. Notwithstanding the statute 1 Vict., 
c. 87, sec. 3, it is still robbery to extort money by threatening a charge of sod- 
omy : Regina v. Siringerf 2 Moo. C. C. 261, overruling Regina v. Henry, id. 

Other ThreaU qf Legal Process and Prosecution. — The threatened charge of 
sodomy is the only threat of prosecution for a crime from which can be inferred 
the fear necessary to constitute the crime of robbery: Long v. Stale, 12 Ga. 
293; Kaetekmd's Case, 2 Leach, 721; S. C, 2 East P. C. 732; Rex v. NewUm^ 
Car. Crim. L. 285; Regina v. Henry, 2 Moo. C. C. 118. Threatening criminal 
prosecution for passing counterfeit money is not sufficient to make the extor- 
tion robbery: BriU v. 8taUj 7 Hump. 45. So of a threat to arrest: KnewkauTi 
Case^ 2 Leach, 721; S. C, 2 East P. C. 732; WiOiams v. State^ 12 Tex. App. 
240. If one against whom a crime has been committed with or without a 

188 Stats v. McCunsl [R L 

wamot arrest the offender, and receive money or p rope rty without violence- 
nnder an agreement not to proeeoate, that is not robbery: L<mg ▼. State^ 12^ 
Ga. 288. Bat if threata of proaecation for any other crime than sodomy 
are aooompanied with force, actual or conatrnctive, the offense ia robbery, 
whether the party be gnilty or not of the crime chaiged. The guilt of th» 
party robbed is no defenae to the robbery: Id. To extort money by mean» 
of a threat to indict the person for perjury is indictable as a trespass at the 
common law: Heginia r. Woodward, 11 Mod. 137. 

In some states, obtaining money by threats is made a aubstantiTe offense: 
Commonwecdlh v. Murphy, 12 AUen, 449; State v. Vtmghan^ 1 Bay, 282;. 
Regina v. Robertaon, Leigh k C. 483. It is not necessary that an indictment, 
under the statute for attempting to extort money by threats should set out 
with technical accuracy the crime or offense with which the defendant is- 
alleged to have threatened to accuse another person. A false statement that 
a warrant has been issued to arrest a person for a crime, which will be served. 
unless money is paid to stay the process, is a threat to accuse him of a crime- 
within the statute: Commontoea&A v. Murphy^ 12 Allen, 449. Threatening 
to procure witnesses to support a charge already made is a different thing, 
from threatening to accuse of an indictable offense which is made a crime by^ 
sUtute: cms CoBt, 1 Lew. C. C. 305. 

Animus Fitrandi I3 Nbobssabt. — ^The final constituent element of robbery^ 
is the amiMu furandi. The taking must be with an intent to appropriate 
the property likewise as in larceny: People v. Kerfer, 2 West Coast Rep. 878^ 
(Cal.); Long v. State, 12 Ga. 293; State v. IJoUyway, 41 Iowa, 200; Ward v. 
Commontoealt/i, 14 Bush, 233; Murphy v. People, 3 Hun, 114; S. C, 5 Thomp. 
& C. 302; JJope v. People, 83 N. T. 418; S. C, 38 Am. Bep. 400; State v. 
SowU, Phill. L. 151; State ▼. Curtk^ 71 N. C. 56; Hammond v. State, 3 Coldw. 
129; Jordan v. Commonwealth, 25 Gratt. 043, 948; United States v. Durbee^ 
McAll. 196. Thus where one commits a mere battery, with no intent to- 
steal, he is not guilty of robbeiy: Murphy v. People, 3 Hun, 114; S. C, & 
Thomp. & C. 302; State t. CfurtU, 71 N. C. 56; see Jordan v. CommonweaLh^ 
2o Gratt. 943, 948. If a gang of poachers attack a gamekeeper and leave 
him senseless on the ground, and one of them return and steal his money,, 
etc., that one only can be convicted of robbery, since all did not act ankno 
/iirandi: Rex v. ffawkina, 3 Gar. & P. 392; S. C., Fost. 128. The prisoner 
ueed not have intended to appropriate the pistol to his own use; if he in- 
tended to deprive the prosecutor of his proper^, that is sufficient, althougb 
he also intended to prevent the pistol being used against him: Jordan v. Com- 
monwealth, 25 Gratt. 943, 948. But see UnUed States v. Durhee, McAll. 196. 
The taking of bank keys may be robbery, though the keys were used only 
for the purpose of entering the bank: Hope v. People, 83 N. Y. 418; S. O.,. 
38 Am. Rep. 460. The use afterwards made of the thing taken is no defensor 
Id. Taking money to desist from rape is robbery, although this was not 
within the original oontemplation of the assailant; Rex v. Blackham, 2 Eaat 
P. C. 711. 

Ehideinee, — ^The form in which the demand for money is made is immaterial. 
The prisoner may say, " Give me your money," or, "Lend me your money,** 
or, '* Make me a present of your money ,^* and it is equivslent to a positive- 
order or demand: Rex v. Dcnally, 1 Leach, 193, 196; 8. 0., 2 East P. G. 
715. The fact of robbery being proved, the cmtimcs furandi is inferred 
from the appropriation of the property: Long v. State, 12 Ga. 293; JonUu^ 
CommonwecUth, 25 Gratt. 943, 948. That the thief was masked or disguised 
at the time of the taking shows animus furandi, and artifice Lu concealing 

Sq>t 1857.] State v. McCuke. 189 

ihe faet that the taker hat the |« u perty sbodn a fekiiioaa intent: SteUt ▼. 
Deal, 64 N. G. 270l It was pennitsible to ihow the animiM furtmdi of 
jDemben of a mob who obtaiiied money by threats of mob Tiolenoe by evi- 
<ienoe of similar demands for money at other places on the same day by the 
Moe mob: Rex t. WMworth^ 4 Gkr. ft P. 444. 

Qmation for Jwry. — ^Whether or not the prisoner took the property with 
intent to steal it is a question for the jnry, under appropriate instructions: 
Jordan t. OommomweaUk, 25 Gratt 943» 948; SuOe ▼. Strwh, Phill. L. 151s 
PtopU Y. HaU^ 6 Park. Cr. 642; Jokn&im ▼. CommmiwmUh^ 24 Oratt. 555. 
558. The jury may oonsider the defendant's charscter for honesty: McQueen 
T. Staie, 82 Ind. 72. 

Betmm qf Propertjf doee noi Purge Qfeuee: I Hale P. C 533. The crime 
if complete though the prisoner after taking the puree gave it back, telling 
the prosecutor to give him the contents, but is apprehended before the money 
ii delivered to him: Peife Caae^ 1 Leach, 228. 

Taking under Belie/ qf Oumerehip i» na Robbery: See "Ownership," eupra. 
When the prisoner takes the property under a bona fide impression that the 
p rc ipe r ty belongs to him, he commits no robbery, for there is no oalmits 
faramdi: Rex v. HoU^ 3 Oar. k P. 409; Long v. 8tale^ 12 Ga. 293; Brown v. 
SMe, 28 Ark. 126 (where the taking was in the preeenoe of others). A 
oeditor who compels payment of his debt by the use of violence is not 
guilty of robbery. There is no aiunute fwramdi: Regina ▼. HemmSmge, 4 F. 
A F. 50; StaU v. HdUyway, 41 Iowa, 200; 8. 0., 20 Am. Bep. 586. This is 
a statutory offense in Iowa: 8taJle v. HoUyumy^ nqnra, 

Takiag by BdUgerents. — A taking from a non-oombatant» in conformity with 
a military order and authority, Commonweaidk v. HeUamd^ 1 Duv. 182, or 
from one of the enemy, Hammond v. SUUe^ 3 Goldw. 129, is not robbery, 
eiooe the act is belligerent and lacks the amknme Juramdi: See United Siatea v. 
//■riee, MoAU. 196. One who, believing himself to be acting under the 
orders of a military officer, forcibly took a sword from another, solely to die- 
arm him, is not guilty of robbery: 8UUe v. SowU^ PhilL L. 151; see United 
Suuee V. Durbee^ enpra. 

Taking hy Wife under Oonehaint 4/ fTusdoMi.— Whatever of a criminal 
nature a wife doee under ccostraint of her husband she is not legally guilty 
of; and the mere presence of the husband at the time of the commission of 
the set raises the presumption that it was done under his oonstrsint. Trea- 
eon and murder form an exception to this rule, and some add robbery. The 
lesson usnally assigned for excepting these offenses from the rule is the 
caormity of the offenses. But Mr. Bishop considers this reason unsatisf ac- 
tny in principle, and thinks that these offianses should be exceptions merely 
to the rule that the husband's coendon is presumed from his presence, because 
they are offenses "of so much malignity as to render it improbable a wife 
would be eoostnjned by her husband, without the separate operation of her 
ewn willt into their comniiseion." And it is inferable that his opinion is 
that if actual constraint can be proved, then the wife should not be held 
answenble even for these crimes: See 1 Bishop Grim. L., sees. 358-^1. But 
St all events, it is doubtful whether robbery should be included among these 
excepted crimes: Id. If a wife acts voluntarily throughout, and takes part 
in the robbecy committed by her husband, she is guilty of the same crime: 
Jfitttr v. State^ 25 Wis. 384. Where a wife participated with her husband 
in a robbery, throttled the victim and told him to keep still, while her bus- 
bsnd rifled his pockets, she is guilty, and did not act under her huslnnd's 
coercion: People v. Wright^ 88 Mich. 744. 

190 State v. McCunb. [R L 

lyDiCTMXMT 10& BoBBKBT. — ^Under tbe appropriate heada aboTe, 
M to what tbe iDdictment thoald contain will be fonnd. There are, how- 
ever, additional cases which are here dted. 

An indictment charging a taking from the person, "feloniously and vio- 
lently," snfficiently alleges a putting in fear: CommonweeUth v. HumpkrieSy 
7 Mass. 242; SUUev. Cowen^ 7 Ired. L. 239; 2 East P. C. 783; see^tote v. Swc^- 
ford^ 3 Lea, 162. '* But it is safer to allege that tbe proeecntor was put ii> 
fear, and that the act was done forcibly, since in this case either of these 
allegations can be discharged as surplusage:*' 1 Whart. Grim. Lb, sec 837; 
see also CoIUm v. People, 39 Ul. 233; Anderson v. State^ 28 Ind. 22; but see 
OlasB v. CommoikoeaUh, 6 Bush, 436; also ChapeU v. Stale, 52 Ala. 539. 
Allegations of ** against the will '* and " from the person '* are necessary: See 
Whart. Grim. PL & Pr., sec. 267; and tupra, under these heads. These alle- 
gations are not necessary under the Pennsylvania statute, when the word 
*'rob" is used: Acher v. CommonweaUh, 94 Pa. St. 284. In Iowa the assault 
need not be alleged in express terms: State v. Brewer, 53 Iowa, 735; StcuU v. 
Kepan, 62 Id. 106. Under an indictment charging robbery by threats of 
future violence, threats of present violence are admissible: State v. Iloufer- 
ton, 58 Mo. 581. If the description of the defense is substantially in the 
words of the statute, it is sufficient: State v. Bamett, 3 Kan. 250; Taylor v. 
CommontoeaUh, 3 Bush, 508. The words of the statute should be followed; 
CommontoeaUh v. Tanner, 5 Id. 316. But indictments substantially con- 
forming to common-law precedents are good in substance, under the penal 
oode in Texas: Burnt v. State, 12 Tex. 269. 

The property may be described the same as in a proaecution for larceny; 
no greater particularity is required: McEntee v. State, 24 Wis. 43; Brenniut 
V. State, 25 Ind. 403; see Turner v. Stat^ 1 Ohio St. 422; WeOep v. State, 61 
Ala. 282. An indictment should state distinctly the kind of money taken: 
Wesley v. State, supra, "Thirty dollars in greenbacks" was sufficient^ 
though '* greenbacks ** is a slang word: Id. "One piece of gold coin of 
American coinage of the value of five dollars *' was sufficient: Terry v. State^ 
13 Ind. 70. Where the statute prescribes that it is sufficient to describe 
money simply as money, it is sufficient to describe the money as ** the sum of 
one hundred dollars in paper currency of the United States:" State v. CarrOp 
26 La. Ann. 377. But " ten dollars in money of United States ourrenoy " is, 
in the absence of such a statute, too indefinite, since currency may be either 
coin, bank notes, or government notes: Crocker v. State, 47 Ala. 53. An 
insufficient description of money alleged to have been taken is cured if the 
indictment recites that a more particular description of the money is unknown 
to the grand jury: Territory t. Bell, 5 West Coast Etep. 702 (Mont.); McQueen 
V. State, 82 Ind. 72. The 'kind of money alleged must be proved: Johnson 
V. CommonweaUh, 24 Gratt. 555. But where the indictment charged larceny 
of treasury notes, it was held sufficient to prove that the property was green- 
backs: Hiekey v. State, 23 Ind. 21. As to value, see " Ownership," supra. 

The name of tbe person robbed, if known, should be stated with the same 
precision as in larceny: Smedly v. State, 30 Tex. 214; Commonweaith v. C^f- 
ford, 8 Cush. 216; Crews v. State, 3 Coldw. 350; Pecple v. Vice, 21 Gal. 344; 
PeopU V. Jones, 53 Id. 58; Parker v. State, 9 Tex. App. 351. Bat a mistake 
in the name of the person robbed is not material, unless the prisoner has been 
prejudiced thereby: State v. Carr, 43 Iowa, 418. An indictment charging 
robbery oranmitted in the public highway is snfficient without specifying the 
termini of the highway: State v. Burke, 73 N. G. 83. Under such an indict- 
ment, evidence cannot be introduoed of a robbery near the highway: Sinu v. 

Sept. 1857.] SiATB V. McCuKK. 1 31 

OeneaMf 7 Irad. L. 838L Bat an indietnmit obargiiig tiie oooiiiKm-law offesM 
of highway robboy to have been oonmiittad "near the highway" ia good: 
State T. Antheny, Id. 234; SUOb ▼. WUaon, 67 N. C. 456; aee State ▼. Hower- 
ton, 59 Mo. 91. 

Coyvjcmov of Lasckht and Oihkb Ikclitdkd OrrxNSK ukdsr Indict- 
UKsr FOB RovBEBT. — ^Bobbery inclndea larceny, larceny from the peraon, and 
assault and battery; and under an indictment for robbery, which, aa we have 
Been, moat allege facta oonatitating larceny, and often facta conatitoting an 
ass&nlt, the priaoner may be convicted of larceny: People ▼. NeUon^ 56 Cal. 
77; People t. Janes, 53 Gal. 58; McEnUe ▼. StaU, 24 Wia. 43; StaU v. Jen- 
hint, 36 Mo. 372; Reffina v. McOrcUh, L. R. I 0. C. 210; larceny from the 
penon: Mttrphy v. People^ 3 Hnn, 114; S. C, 5 Thomp. & G. 302; grand lar- 
ceny: Alien y. State, 58 Ala. 08; ffickey y. State^ 23 Ind. 21; aee StaU v. 
Howard, 19 Kan. 507; common aaaault: Begina t. Bireh, 1 Den. G. G. 185; 
Howard y. State, 25 Ohio St. 399; or aaaault and battery: Murpky r. People, 
Z Hun, 114; S. G., 5 Thomp. & G. 302. But robbery doea not neceaaarily in- 
clude grand laroeny; and a yerdict of robbery on inauffident eyidence docs 
not authorize the court, on motion for new trial, to aentenoe the priaoner for 
grand laroeny: State y. Howard, 19 E^an. 507. A conviction of grand lar- 
ceny bare a aubaequent proaecution for robbery: Jliekey v. State, 23 Ind. 21 ; 
see alao note on a^rtfois acquit and convict, Roberts v. StaU, 58 Am. Dec. 
536 et seq. The offenae of aaaault and battery with intent to rob ia not 
merged in the crime of robbery, but the prisoner may be proeecuted for 
either: HasnUUon v. State, 36 Ind. 280. No conviction of robbery in the sec- 
ond degree, which ia when the fear ia of a future injury, can be had under on 
indictment for robbery in the firat degree, in Miaaonii: SUUe v. JenBne, 36 
Mo. 372. 

Tus PRINCIPAL 0181 IB CITED in Brtnnan v. State, 25 Ind. 404, which dtea 
tSie principal caae, and Meaon^s due, Ruaa. & Ry. 418, aa going to the verge 
of the law in holding that the breaking of a watch-guard or chain in taking a 
watch oonatitutea anfficknt f oroe to make the offanae robbery. 







[8 BlOHABMOH'S EqUITT, 156.] 

8DBBTY Who has Paid Debt is Crbditob of Pbdigipal, and relief roky 
be afforded him as such against a frandnlent oonyeyanoe by the prin- 

Atxbment of Igvorakob of Fbaud until Tim within Statotobt Lim- 
itation made by plaintiff in bill to set aside fraadnlent oonveyanoe casts 
the burden upon tiie defendant to prove the contrary. 

Averment of Ionobancx of Fraud until Tdcb within Statutobi 
Limitation is sufficient if made in a manner sufficiently explicit to 
enable the defendant to meet the iBSue tendered. 

Rboistrt of Dbed does not Oivb Notice of Fraud in its Execution. 

Bill to set aside alleged fraudulent conveyancey and to sub- 
ject the land to the payment of a debt. The complainant waa 
a surety upon a note of the defendant Lambert. The surety 
took up the note, and obtained a confession of indebtedness, on 
which judgment was signed on the ninth, and execution lodged 
on the tenth of March, 1841. The averment of ignorance of 
the fraud till a time within the statutory period was to the 
effect that it was within four years that the complainant dis- 
covered the fraud perpetrated upon him, to wit, he discovered 
the deed to Sessions in October, 1852, and so on, setting out 
the dates when he discovered the deeds involved in this cause. 
The chancellor held that this averment was insufficient, since 
he did not set out the facts constituting the fraud, accompanied 
with an allegation that those facts did not come to bis knowledge 
until within four years. And the chancellor also held that the 


^an. 1856.J Qodbold v. Lajcbebt. 1M 

sftatnte zaa agunsfc him from the date of the r^giBtiy of tha 
deeds. The hiU wee ordeied to be dumiBsed, and tiie com- 
fdainant appealed. The vemaimng faeia appear from the opiiH 

Evans, for the appellant. 
PkUUpe, contra. 

By Court, Daboah, Ohaneellor. It ia manileat that Jamea 
Lambert, one of the def endants, has oommitted a fraud npon the 
plaintiff, who was his snrefy, and whom he left to pay his debt, 
although he had means enough to pay his own debts. After 
the surety had paid the debt, the defendant Lambert gaye him 
a confession of judgment on the same, upon which judgment 
was entered up and execution was lodged. The defendant 
I^mbert, having bought land from one Thompson (about six 
hundred and three acres), and fraudulently, and with the Tiew of 
defeating his creditors, caused titles to be made by Thompson 
to his three infant children (who are also parties to this suit); 
the deed of Thompson bearing date the thirteenth of October, 

Under a judgment and execution against Lambert, Gowan, the 
eberiff of Hony, sold the land on the fourth of October, 1841, 
to Sessions, for ten dollars and fifty cents, and conyeyed the land 
to Sessions by deed bearing date ihe tenth of October, 1841. 

In the mean time, by reimbursing Sessions for the purchase 
money, Lambert procured him to recouTcy the land to his chil- 
dren; which was done by deed, dated the sixteenth of Febniaiy, 

The plaintiff's judgment remaining unsatisfied, by Tirtue of an 
execution under Uie same, the sheriff again levied on and sold the 
land as Lambert's properly. It was bid off by the plaintiff to 
this suit for ten dollars, and conveyed to him by deed accord- 

The plaintiff has instituted a suit at law for the land, but 
deeming his success doubtful, he has come into this court. His 
bill was filed the tenth of Januaiy, 1855. The bill prays that 
the deeds to the children may be set aside as fraudulent against 
the creditors of the father. The plaintiff asks that this court 
will grant him aid auxiliary to his suit at law, or grant him 
plenaiy relief in this court 

Whatever view may be taken of the case, this court can grant 
him no aid in his suit at law. The execution, by virtue of which 
4he land was sold to Godbold, was dormant. It had been re* 

Am. nao. Voii. LXX^U 

196 Sncs V. McLuRB. [S. CSaroIinA. 

the purchaser bond and personal seonrity, and a mortgage of 
the premises. 

DuHKDf and Wabdiaw, c h a n oellora, concurred. 

I>e<9ee reyersed. _^^ 


where grantor's creditor ieeks to set aside the deed: MeDcwttt y. ChUkmUk, 
61 Am. Deo. 805, and note 817. 

BuBDBN or PROor, WHBN Pabitt Sbbkb to Ayoid Statutb of LmiTA- 
TIOK8 on the gronnd that he had no notioe of the fraud complained o^ n upon 
the defendant: Shannon v. WkUe^ 60 Am. Deo. 115, note 121. 

Subbtt is Cbbditob, and mat Imtbach Gontxtancb a8 Fbaudulent: 
ChoUan v. JfrnM, 50 Am. Deo. 460, note 469; note to Oreer v. WriglU^ 52 Id. 
117, 118; HtUekimm v. JTeKy, 89 Id. 260; but see WUUam» y. TipUm, 42 Id. 

Rboibtbt or Dxbd is onlt Impubd Notice or its Gontbhtb, and not 
of any fraud that may be perpetrated in its execution: Meurtin y. Smith, 4 
Kat. Bank. Reg. 287; S. C, 1 DilL 98, citing the principal case. It is notioe 
only of wliat appears on the faoe of the deed: Shepherd v. BurlMUer, 68 Am. 
Dec. 523, note 528. 

Thb principal casb is citbd in T^raek v. (Treen, 9 Mioh. 370^ to the 
point that in some states, where judgments constitute a lien on real estate, it 
has been held that a oreditor lias by his judgment a lien on the equitable 
estate of the debtor, in like manner as at law on Us legal estate. 

Sms V. MoLuBB. 

[8 BiOBAXoaoH^ Equxtt, 98S.] 

Smr TO Bit asidb Contract or Lunatic, in South Gaboldia, may be 

brought in the name of the committee of the lunatic, bat it is better to 

make the lunatic a party, for in tlus state the maxim that one oaonot 

stultify himself is not recognized. 
Bqcitt Svts A8IDB AcTS OP LoNATics ON Gbound that Imod has been 

practiced upon them. 
Bill to Set abide Contracts or Lunatic should state facts impeaching 

each contract sought to be avoided. 
Lunatic is Bound bt Contracts Madb bktobb Inquisitiov or Lunaot« 

where no undue advantage has been taken of him, and where evidences 

of his mental unsoundness were not so manifest as necessarily to give 

notice of his incompetency to contract. 
Oontbacts or Lunatics Madb ArrsB Timb 'at Which Inquisition Furoi 

Unboundnbss to Bbgin are prima fade void; but the inquisition is not 

conclusive evidence of mental unsoundness* 

Bill in equity. The opinion of the ohanoflUor states the 
The complainant appealed. 

Bobo, for the appellanL 
Dawkingf conira. 

May, ISSe.] Sms v. McLubk 197 

By Court, Wasdliw, Ohanoellor. By an inquisition ezeoated 
under the order of this conrt on Jannaiy 26, 1863, and confirmed 
April 12, 1853, by a ohanoellor, it was foond that Thaddeus G. 
Sims ** is of unsound mind, and has been so from his in&noy. 
end incapable of the gOTemment of himself and estate/' The 
pliMiiHff was appointed committee of the said Thaddeus, and oa 
July 23, 1863, he, as committee, filed this bill to set aside sales 
of certain slaves, made by said Tbaddeus, and certain judgments 
confessed by him before the inquisition. 

The practice of instituting such a suit in the name of the 
committee only is sustained by high authority: Story's Eq« 
PL, sec. 64; Ortiey t. Mesaere, 7 Johns. Oh. 139. But where, as 
in this state, the nuudm of the common law, that <me cannot 
Ltnltify himself, is not recognised, it is certainly better to follow 
the general rule of pleading to make all parties to the suit who 
are materially interested in the object of it, and not to litigate 
and adjudge concerning the estate of any person, eyen a lunatic, 
who is not before the court The pleading of the plaintiff is 
liable to other and more serious objections. He seeks redress 
in one bill against many defendants, for Tarious representations, 
in which the defendants have no community of interest or action. 
Worse still, he states no specific case against any one of the 
defendants, and endesTors by vague averments to implicate alL 
A brief summary of the bill is, that Thaddeus was regarded by 
his family and friends as of tmsound mind, without adequate 
knowledge of the value of property, and liable to be overreached; 
that he was entitled by succession to seventeen negroes and 
several thousand dollars; and that, on his coming of age in 
1860, this property was put into his unrestricted possession bj 
his guardian, J. J. Pratt, after a settlement with him; that of this 
estate nothing remains in his hands except a tract of land worth 
eight hundred or one thousand dollars, three negroes, and some 
other chattels of inconsiderable value, subject to the lien of judg- 
ments against him to about the sum of one thousand six hun« 
dred dollars; that the other negroes have passed into the hands 
of sundry persons for very inadequate consideration, paid in 
things of littte value to him; and that of these negroes, Peyton 
Hunter has two, Margaret and Taylor; William T. Wilkins has 
two, Irene and Margaret; William Bobbs has three, Moee, Jim, 
and Trezevant; McLure and Wilson have Elisa; and William 
Savage has Frank; that of the debts in judgment, a list of which 
is exhibited, some were contracted while Thaddeus was a minor, 
and many others were without any adeqtiate consideration of any 

198 Sms t;. McLuBS. [S. Carolina^ 

Lind, under mere pretenses, by which his imbeoilitjr was arer- 
reached; although some of them may have been for neoessaries, 
•and entitled to payment. And the prayer of the bill is that 
'the defendants be required to make a full exhibit of their deal* 
'ings with Thaddeus, with dates, items, and proofis of fEumess, 
:and oome to a full account with plaintiff, and in the mean timA 
be enjoined; and that the unjust contracts be set aside, and the 
properly acquired under them be delivered to plaintiff, and that 
he be allowed to sell so much of it as is necessary, and pay the 
creditors whatever is fairly due. The bill further alleges that 
plaintiff applied to some of the creditors for statements of 
their claims against his ward (of which there is no proof except 
as to Hunter), and that in the only case in which his request was 
complied with. Hunter's, he is satisfied a portion of the claim is 
not allowable. All of these allegations are of a sweeping and 
indefinite character, and not pointed individually to persons or 
transactions. The grounds on which courts of equity interfere 
to set aside the sales or other solemn acts of persons of un- 
sound or weak minds is that fraud has been practiced on 
them: Story's Eq. Jur., sec. 227. A plaintiff seeking the aid of 
the court in such case should state in his bill facts and circum- 
stances impeaching each particular contract sought to be avoided. 

It may be that all contracts of persons rum compotes tnenHa^ 
made after the time at which the inquisition finds the unsound- 
ness to begin, are prima facie void, that is, voidable; but the 
inquisition is not conclusive evidence of the fact of unsound- 
ness, and may be gainsaid by a party in interest without formal 
traverse. Indeed, a fair contract made with a lunatic by a third 
person, without notice of the lunacy, will not be disturbed: 
JSaxter v. Earl of Portsmouffi, 5 Barn. & Cress. 170; NieU v. 
Morley, 9 Yes. 478; Beavan v. McDonnell, 9 Exch. 809; Ballard 
V. McKenna, 4 Bich. Eq. 358; Keys v. Norrie, 6 Id. 888. 

The bill in this case does not allege that the defendants, at 
the time of their several contracts, had any notice of the un- 
soundness of mind of Thaddeus Sims; and the defendants not 
only deny notice of this fact, but altogether dispute the un- 
soundness. I shall not repeat in detail the evidence given as 
to unsoundness; but a brief summary of it is, that Thaddeus 
learned little or nothing at school, that he could not count 
well, and that he seemed to know little of the denominations 
of bank bills. On the other hand, that upon attaining full age 
his guardian, a most prudent and respectable man, settled with 
him and delivered to him his property in unrestricted 

Maj, 1856.] Sncs v. MgLubx. 199 

tton; and ihat afterwaids, until the inqniBition, he managed 
ids own affiiixe, haTing dealings, as one oompeient, with his ze- 
lations and other persons; that he contracted marriage with the 
daughter of a respectable family; that he plowed well; that 
he asked high prices for properly he wished to sell; that he was 
ihankfnl to a witness for keeping him out of a fight; that he 
sometimes ga^e sound opinions as to the Talue of property 
when his adTice was sought; that he recognised his debts, and 
made arrangements for their payment; that he was able to make 
abort calcubttions in his head; that he named and knew by 
name eighteen game-chickens raised for him by a neighbor; and 
that he played whist well (although I beUeye cards were in- 
Tented for the amusement of a crasy French king). It seems 
impossible to conclude, on this e^dence, that his unsoundness 
was of that manifest character as necessarily to furnish notice 
of his incompetency to contract to those undertaking to deal 
with him. I am of opinion that he must be bound by his con- 
tracts, where no undue adyantage was taken of him, before his 
friends chose to haye a committee appointed for him by the 
court: DcHfdsT.TFt^son, ITreadw. 448. His contracts impeached 
are the sales of certain negroes, and certain debts which haye 
passed into judgments; and they may be considered separately. 
Of the seventeen elaves alleged to belong to him on maturity, 
five were accidentally burned to death, three remain in his pos- 
session, and three were sold to his father-in-law, Bobbs, con- 
cerning which a satisfactoxy adjustment had been made. The 
title of William Savage to another must be protected by the 
plea of purchase for valuable consideration without notice, and 
by the satisfactory proof of the fairness of the original sale of 
this slave to B. S. Sims. In like manner, the purchase of one 
by McLure and Wilson, of two by Wilkins, and of two by 
Hunter seem to have been made bona fide for full prices, and 
must stand. Some of the witnesses expressed the opinion that 
the price paid by Hunter was moderate, but the inadequacy was 
not such as of itself to furnish evidence of fraud, and there 
was no corroborative evidence. 

So, too, of the debts contracted by Thaddeus; while there was 
evidence of extravagance and improvidence on the part of him- 
self and wife, there is no proof of overreaching on the part of the 
creditors. Some of the debts were contracted with the assent 
of his friends, and others are confessedly fair. In the state of 
the pleadings and proofs, there is no satisfactory ground for the 
interference of the court as to these debts. 

100 Mabun t;. BXLU [S. Carolina^ 

The evidence, however, maJcee a pzetty strong case as to the- 
aatis&iotion of the judgment to WiUdns and of the judgment and 
mortgage to Hunter; and it ia proper that further inquiry be* 
made on these points. 

It is ordered and decreed that it be referred to the commis- 
sioner to inquire and report how much, if anything, remains due- 
upon the judgment and mortgage of Hunter and the judgment 
of WilMns against Thaddeus Sims; and that in the mean time 
Hunter and Willdns be enjoined from enforcing the ooUectioa 
of tliese debts. 

It is further ordered that in all other particulars the bills be 

This court sees no suffidemt reason for differing from the chan-^ 
cellor. It is therefore ordered that his decree be affirmed, and 
the appeal dismissed. 

Johnston, Dunxzn, Daboan, and Wabdiaw, chancellors, eon* 

Appeal dismissed. __^ 

LfQUiainoH or Lunact, Bmor ov, as EvmsNOSt See Ofbmm t. Soper, 9& 
Am. Deo. 414; In re Chmgwert^a EsUUe, 63 Id. 554, and note 561. 

Plba that Estate or Lunatic Who Subs bt Pboohbin Ala is in diMge 
of oommittee who should briDg the suit is a plea in abatement not goiog to 
the jurisdiotion: Cook v. TkomkUl^ 65 Am. Dec. 63. 

yALn>iT7 or Gontbaots with Lunatics; See Sidkurdtim y. Strongf 55 Am. 
Deo. 430^ and oases oited in the note 431. If the contract was entered into 
innooently, and no nndne advantage has been taken of him, he will be liable 
on the oontiact: BeaU v. See, 49 Id. 573. A contract made by a Innatio with 
one who had no notice of his condition, and which is in itself £sir and Jnst and 
has become so far ezecnted that the parties cannot be placed in stote qmo^ will 
not be set aside: JRiy y. BurdUi, 81 Ind. 440, citing the principal case. See 
also note treating this sobject, Jackaon v. Gmg^ 15 Am. Deo. S61-860| 
Beaivery. PMpB, 22 Id. 872. 

Mabtin t;. Bbll. 

[9 BiOHnArawni*S Bqdxtt, 42.] 

DsviBB OB Bbqubst TO Marbikd Woman must bb Held to Cbbatv 
SsPAaATB EsTATB if intent to exclude marital right of hntfaasd can be- 
fairly deduced from the language used. 

Tbbtatob iCAT OivB Propebtt to Dauobtbb, and secure it from liability 
for her husband's debts, notwithstanding the general rule that in testa- 
mentary dispositions of property the incidents of the property cannot be 
taken away. 

ttannsB OB Bbqubst to Tbstatob's Dauohtbbs declaring that the property 
** shall in no wUe be subject to the debts of their husbands, in no 
whatsoever." creates a separate estate in the daughters. 

Nov. 1856.] Mabtin v. Bell. 201 

Bill to obtema oonstmctioii of aelaoM intheirill of ThomM 
Bell» which was as follows: " The properly, real or personal^ 
that my three daughters, Maxgaret IL, Naiu^ J., and Martha S.» 
may or do reoeiTe lathis my will, I hereby settle it on them and 
the lawful issoe of their bodies forerer, and I do deolare that 
it shall in no wise be sabjeot to the debts of their husbands, in 
no ease whatsoerer.'' The suit was institatel by W. M. lliu> 
tin and wife against W. Bell and wife and others, and among 
the questions snbmitted was whether the estates of Mrs. Bell 
and Mrs. Martin were separate estates. The chanoellor held 
that they were separate eeti^tes, and the plaintiffs appealed on 

Boyhton, for the appellants. 

By Court, Dunas, Chanoellor. In WOrnrn ▼. Bailer, 8 Strobh. 
Eq. 260, it is said that a separate estate in the wife is the crea- 
tore of the court of chancery, and in derogation of the husband's 
common-law right, and that unless the intention to exclude 
the husband is clearly expressed, or arises by necessary impli* 
cation, the marital right is maintained. It is also there said 
that in order to ascertain whether it was intended to exclude 
the marital right, it is necessary to analysse the language used 
in OTeiy case. The instrument before us is testamentary. It 
was a provision of a father in favor of his daughters, two of 
whom were then unmarried women, and one, Mrs. Bell, married. 
The difficulty in reconciling the authorities arises from con* 
founding the amplitude of the gift to the donee with an exdu* 
sion of the marital right. But if the intent to exclude may be 
fiurly deduced from the language used, it is the duty of the court 
to give effect to this as to erery other lawful intention of the 
testator. The distinctions are sometimes nice. A gift to a 
married woman as her own in eyexy respect has been held not 
to exclude the husband. But in Ex parle Bay, 1 Madd. 199, 
Sir Thomas Plumer held that a gift to '* her sole use'' gaye a 
separate estate; and chiefly because of the technical character of 
the expression ** sole." The language of this will is, in some 
respects, technical. "The property, real or personal, that my 
three daughters may or do receiye by this my will, I hereby 
settle it on them and the lawful issue of their bodies forever.'' 
It may be that the word *' settle " would only refer to the limi- 
tation of the estate. But he proceeds, '* and I do declare that 
it shall in no wise be subject to the debts of their husbands, in 
no case whatsoever." Certainly it is not competent for a testa* 

202 Mabtin v. Bell. [S. Carolina^ 

tor to give property to his son or daughter and take away the 
inddents of properly. But it ia not less clear that, aoeording 
to well-established principles of this oonrt, he may give properly 
to his daughter, and at the same time secure that property from 
liability for her husband's debts. But this can only be affected 
by construing the gift to create a separate estate. The intent to 
exclude the marital right in this case is demonstrated by declar- 
ing the property exempt from the principal incident of such 
right WeaOiefford t. Taie^ 2 Strobh. Eq. 27, has been supposed 
to conflict with the decision of the circuit chancellor. In that 
^ase shiTes were bequeathed to the daughters in terms which 
Tested an absolute estate; but to the bequest was added this 
provision: '* No sale made by either of their husbands shall be 
valid unless by the consent of both or one of my executors, 
and thus my executors have power to prevent such property be- 
ing moved off the state." This restriction upon alienation had 
no reference to the separate enjoyment of the wife, and was not 
intended to secure it. On the contnuy, apparently recognising 
the title of the husband, the testator sought only to restrain the 
exercise of it so far as to prevent the removal of the slaves be- 
yond the limits of the state. To accomplish this, he declared 
that any sale by the husband must have the sanction of the exec- 
utors, or one of them, in order to secure its validity. The court 
could infer no intention to exclude a right from a provision that 
it shall not be exercised in a particular way. If the testator had 
provided that no husband of his daughters should require more 
than nominal wages from the slaves, this restriction could hardly 
be construed into an intent to secure a separate estate to his 
daughters, although if effectual, the provision would seriouslj im- 
pair the value of the husband's enjoyment. Such the court ap- 
pear to have regarded the character of the restriction in Wealher^ 
ford V. TaU^ supra. * * This provision,'' say the court, ** was not a 
condition, because there was no forfeiture or penalty attachtyl to 
it, and was utterly inconsistent with the general right of prop- 
erty, and could only operate as a command or order that the 
property should not be removed or sold, which the party might 
obey or not at his pleasure." 
It is ordered and decreed that the appeal be difffnissed, 

JoHHSioir, chancellor, concurred. 

Daboah, chancellor, absent at hearing. 

Appeal dismissed. 

No7. 1856.] Babb v. Harbison. f08 

WoBDB CBBAsnm Sbpabatx Ektaxb or M<>¥Bfin Woiuvt 8m Aum t. 
EoU^ 64 An. Deo. 585* md omm etted in the note 587» AondirvHi t. Jmm, 
63 Id. 217; note to SmMk t. ITelZi, 39 Id. 773-778. 

TnxATomlB LneiHT io Guuts Sxparats BnAn* whbi Gijub» mm 
Futail: Bbmm t. J7cA; 64 Am. Dea 686, and omm olt8d la tU Mto 687. 

Babb v. Habreboh. 

p BiOBAaiMKWs SQiniT, UL] 

Vuawamm nw w Baii Will and Dhd d that a will hM no oparafekm valil 
tlio dflftth of tho testator, and that a deed moat take effwi on iti ezo- 
ontkm, and immediately pais the estate or intersst giyaa* althoogh It is 
not essnntisl that this interest ahall immediately pass into ths posssssJon 
of the donee. 

IimsiTifxm 18 vov Dbxd if iMmnr Guutxd ik> vot AMn vmtil 
Death oi Dovom or some other future time, althoogh it nay be denomi- 
nated a deed by the maker, may have express words of immediate grant, 
may have saffident oonsideratioa to support a grant, and nay be for- 
mdly deliTered. 

ImrauyMnT u Will, Wbativib m Fobm, if the intention of the maker 
to diapoee of liia estate after death be sufficiently manifssted, and this in- 
tention be lawfdl in itself, and the writing have the stetatory formalities. 


or at some fntoxe time, is not a deed, thoogh in many l e sp e ete in the 
form of one, and may be ineilbotoal as a will from a lack of the reqni- 
site number of wil 

Box in eqmty. Tha plninMfffl, Babb and \hte, claim a 
tribuiiye share in certain slayes, unless the title to them is 
Tested in the defendant under the instrument filed as an ex- 
bibit. If this instrument is a deed, its due execution and de- 
liTeiyy and consequently the defendant's title, are admitted. But 
it is claimed that it is testamentary in its nature, and void as a 
will, since it is attested by only two subscribing witnesses. The 
instrument in question reads : ** Enow all men by these presents, 
that I, Sarah Hamson, of the district and state aforesaid, for 
and in considenition of the love and affection that I bear to- 
wards my son, Cuthbert Harrison, and one dollar to me in hand 
fiaid, • ... do give, make, and bequeath .... unto my said 
son, Cuthbert Harrison, a certain negro woman, Harriet, and her 
daughter Ellen, together with their future issue and increase; 
to have and to hold the said negroes, Hamet and Ellen, and to 
be at his diqK)sal when and wherever he may think fit or ap- 
point; now, the said negroes, Harriet and Ellen, are to go into 
the possession of the said Cuthbert Harrison at the time of my 

204 Babb v. Harbison. [S. Carolina^ 

death; and upon the receipt of said n^gzoea, he is hereby re* 
quiied to pay to my grandson [here seyeral grandohildrea 
and relatives are named, to whom he is ** required to pay" on» 
himdred dollars each]. Witness my hand and seal this second, 
day of March, A. D. 1868. Sarah Harrison, [l. s.] Made and 
executed in the presence of us, this 2 March, 1853. Jon'n* 
Davis, James Aiken. I, Sarah Harrison, of the district and stata 
aforesaid, do other and further make and require my said son, 
Outhbert Harrison, in view of the &ct that should he, the said 
Outhbert Harrison, depart this life, and leaving no lawful issue, 
I request him, the said Outhbert Hanison, to make and settle the 
said negroes, Harriet and Ellen, with their future issue and in- 
crease, to my granddaughter, Mary Morgan, wife of James Mor- 
gan, and to the heirs of her body forever.** Date, signature, 
and attestation the same as above. The court held this instni* 
ment to be testamentary, and void as a will for lack of the 
requisite number of witnesses. The defendant appealed. 

Boylsion, for the appellant. 
Bian, canira. 

By Court, Wabdlaw, Ohanoellor. The tribunal of dernier 
restart in this state. Joggers v. Eetea, 2 Strobh. Eq. 343 [49 Am. 
Dec. 674], has determined conclusively that a donor by a deed, 
without naming trustees, may convey an interest in remainder 
in a chattel after reserving a life estate to himself, it it be ap- 
parent from the construction of the whole instrument of gift 
that a present title was intended to pass irrevocably to the 
donee, and that the enjoyment only was postponed. Neverthe- 
less, it follows from the definition of a will, a lawful disposal 
of one's estate to take effect after his death (Oarthew, 38; 1 
Swinbum on Wills, 25; Oo. Int. Ill), that the postponement of 
enjoyment by the donee until the death of the donor still leads 
to the conclusion in any controversy, whether an instrument of 
gift be an irrevocable deed or testamentary, that the instru- 
ment is testamentary, unless it may be fairly demonstrated 
from the text and context that a future interest was presently 
and irrevocably given. The prominent distinction between a 
will and a deed is, that a will has no operation until the death 
of the testator, and that a deed must take effect on its execu- 
tion, and immediately pass the estate or interest given, although 
it is not essential that this interest shall immediately pass 
into the possession of the donee. If the interest created do not 
•nse until the death of the donor, or some other future time, the 

Vov. 1856.] Babb v. Habbison. 805 

instniment eannot be a deed, although it may be so denomi- 
nated bj ihe maker, may have ezpvesa words of immediate 
gnmt, zuaj haye sufficient consideration to support a grant, and 
may be formally deliTered: Exxon t. WiOumd, 1 Oh. Cas. 2A8; 
Oregn ▼. Pfxmde^ 1 Mod. 117; Shargold t. BhargM^ cited in IFord 
T. Hcm^Ty 2 Yes. sen. 440; Habergham t. Vinoeni^ 2 Yes. jun. 
SSI; Attmrn t. AUiaon, 4 Hawks, 141. On the other hand, if 
the proTisions of the instrument be testamentary in their char- 
acter, if the intention of the maker to dispose of his estate after 
death be sufficiently manifested, and this intention be lawful 
in itself, and the writing haTing the statutory formalities, the 
instniment will operate as a will, whateyer may be its form: 
LawBon y. Lawsorij 1 P. Wms. 440; HaU t. Hewer^ Amb. 203; 
and the cases cited supra. The instrument, the character of 
which we are considering, does not call itself a deed, as the 
instrument in Wheder t. DurarU^ 8 Bich. Eq. 468, did, which 
was the principal foundation of the doubts expressed in that 
case concerning the testamentary character of the writing there 
in oontroTersy. It does not profess to have been deUyerBd, and 
the omission of the internal eTidence of this fact of delivery, 
which fact is essential in the execution of a deed, is a principal 
ground in Bagsdale y. Booker, 2 Strobh. Eq. 248, for holding the 
writing there in question to be testamentary. It contains no 
unequiTOcal words of immediate grant; for the word '* give " is 
quite as appropriate and as commonly used in a will as a deed; 
the word '' make,'' utterly unintelligible in some of the instances 
of its employment, here is in all the instances as applicable to a 
will as a deed; and the word ** bequeath " is characteristic of a 
will, and controls the other equivocal words of gift. 

This paper has the salutatory words commonly employed in a 
deed, "know all men by these presents," but these words 
are in no respect contradictory of a will; and similar, even 
stronger, words were used in instruments adjudged to be testa« 
mentary in the cases of Habergham y. VincerU, 2 Yes. jun. 231; 
AUiaon y. AUi9on^ 4 Hawks, 141; and see Alexander y. Burnett, 
5 Rich. L. 189. It ondts, moreover, in the attestation the charac- 
teristic words of a deed, '' signed, sealed, and delivered/' so 
well known and used as to be familiar to the most ignorant 
scriveners, and employs instead the words ''made and exe- 
cuted," confessedly equivocal, but rather pertinent to a will than 
a deed. It ako has a seal, but this concludes nothing, for 
seals, however unnecessary, are generally appended to wills. It 
was delivered to the donee, or deposited with him, but the 

206 Babb v. Harrison. [S. Carolinar 

pioi>ertj YFSB not delivered, and the instrument is not a oym- 
bolio delivexj of the property unless present title was intended 
to be conTeyed. It has, in addition to the good consideration, 
a maternal affection, the nominally Taluable consideration of 
one dollar; yet this circumstance, although certainly unusual ip. 
formal wills, occurred in some of the cases which have been 
dted, and was treated as inconsequential and insignificant. It 
has an informal habendum and tenendum clause, and such clause 
is usual in deeds couTcying real estate, not common in bills of 
sale, and more unusual in wills, yet not inconsistent with testa^ 
mentary dispositions; and the words ** to have and to hold the 
said negroes, Harriet and Ellen," immediately follow the phrase 
" with their future issue and increase," at least unnecessary 
when a present title, eyen with deferred possession, is intended 
to pass, and they are immediately followed by the phrase " to 
be at his [the donee's] disposal when and whereTcr he may 
think fit or appoint.'^ This latter phrase might possibly, in 
an instrument otherwise definite in character as a deed, receive 
the interpretation that the donee, whenever it was matter of 
convenience to him, might dispose of the chattels by absolute 
or conditional sales before he came into possession; but to my 
perception, the phrase contains a strong implication that some 
act future to the execution of the instrument was to be done by 
the donee before his title vested. The slaves were to be his 
property and '' at his disposal," whenever in time to come he 
should think fit or determine to take them on the conditions 
and charges imposed. He was to " appoint" this time. Also 
the nature of these charges, that the donee, when he came iuto 
possession of the slaves at donor's death, should pay certain 
sums of money to other descendants of the donor, without the 
creation of any lien on the property given, affords some indica* 
tion that the writing was intended to be testamentary. Then 
the double execution of the instrument, although certainly on 
the same day and before the same witnesses, and probably in 
immediate sequence, manifests to some extent that the appendix 
was a codicil, and that the whole instrument was intended to be 
revocable; and this manifestation receives some additional force 
from the nature of the requirement in the appendix, that the 
donee should settle the slaves upon another in case of his death 
without leaving issue. 

It is argued that the judgment of the court of law in Jlexan^ 
der V. BumeU, 6 Bich. L. 189, is opposed to the conclusion to 
which this reasoning tends. But in that case the words of im- 

Jan. IS57.] CUdsdin v. Oabboh. 207 

mediate grant, inappropriate to a will, "grant, iiargain, and 
sell/' were used, there was an express warranty, the instru- 
ment was ictrinsicallj denominated a deed, and the property* 
was actoallj deliyered, and all the forms of a deed were ob* 
served. It did contain words, " this deed of gift to be of no 
effect whatever until my [donor's] death," which might well 
divide opinions, and upon which the judges did differ, but 
without contesting the judgment of the majority, that these 
words referred to enjoyment, and not to title, the case is palpa- 
bly distinguishable from the one in hand. 

Upon the construction of the whole instrument now in ques* 
tion, we are of opinion that it is testamentary, and that, as it 
lacks the number of witnesses required by our statutes for testa- 
ments, it does not obstruct the relief sought by plaintiffs. It ia 
ordered and decreed that the circuit decree be affirmed and th» 
appeal dismissed. 

JoEHSTOH, DuNKiN, and Daboah, chancellors, concurred. 

Appeal dismissed. 

DiSTiNcnoN BETWiBK Deed AND WiLL: Seo Joktuon y. Tanceiff 66 Anu 
Deo. 646, and cases cited in the note 647; WaU ▼. Wall, 64 Id. 147; WeUhan^ 
▼. Weaver, 63 Id. 235, and note 243-246; Watkin$ v. Dean, 31 Id. 683, and 
note 585; ffUeman y. Botulaugh, 63 Id. 474. 

Will is Ambulatobt uvtil Xestator'b Death: E§UUe i/NorrUt 65 
Dee. 545, and note citing prior cases; Monk v. Manh, 64 Id. 506. 

Gadsden v. Gabson. 

[9 Bicbabosok's Equity, m.] 

Iimnm>nAL Cbbditors of Partner have not Such Ezclubiyb Kigbt t» 
Pathxxt oot of his individual property as to render frandnlent a» 
assignment of it for the benefit of the firm creditors. 

Ikdiyidual Ojubditdb of Partxkr mat, in Equitt, Compel Pabtnbb> 
amp Cbbditob to resort first to the partnership assets for payment, since* 
the claim of the individnal creditor applies only to the private property 
of his debtor, including whatever balance may remain to him oat of th» 
firm assets after its afiairs are wound up, while the partnership creditor 
is entitled to pasrment not only out of the firm property, bat also out of 
the private property of the individual partners. 

Fabtnkbship Crbditor, after Exhausting Partnership Funds, i» 
Entitled Equally with Individual Creditors to payment of aa 
nnsatisfied balance of his debt ont of the private property of a partner. 


Debtor's Property, and ezaats from the creditors a relesse of tha 
debtor, is fraudulent. 
AanoNMENT BY PARTNER FOR BENEFIT OF Cbbdrobs that ezacts a r el sasa 
of the firm as well iia uf himnelf. \% fraudulent. 

208 Gadsden v. Cabson. [S. Carolina 

Bell to set aside assignment for the benefit of creditoxs as 
Crandolenty and Oarson, Furman, and Harlee are made defend* 
ants. The plaintiff was an indiTidnal creditor of Carson, who 
was a member of the firms of Elisha Carson A Son and Carson, 
Belser, & Co. The deed of assignment sought to be set aside 
was made by Elisha Carson to Furman. It assigned C xaon's 
priyate properly* but not the whole of it. It provided for the 
payment both of debts of the two aboTe-named firms respeot- 
avely, and of the assignor's individual debts. And it exacted 
from the creditors who were to receive the benefit of the assign- 
ment a full release to Elisha Carson, James M. Carson, his son, 
and Belser, who were the constituent members of the two firms. 
Harlee, who was a creditor of both firms, had accepted the 
assignment and executed a release. The court set aside the 
assignment and decreed further relief in the premises. Harlee 

MicheU, for the appellant. 

MagraJth and MoCrady, for the complainant. 

Martin^ for Furman and Carson. 

By Court, Johnston, Chancellor. This court is entirely sat* 
^ed with the substance of the decree. 

We are not prepared to say that the individual creditors of one 
who is a partner have such an exclusive right to payment out of 
his individual property as to render it fraudulent for him to ap- 
propriate it, or a portion of it, to the payment of the debts of the 
firm with which he is connected, and for which he is bound. Our 
opinion on that subject is, that the right of such creditor extends 
only thus far, viz. : inasmuch as his claim applies only to the pri- 
vate property of his debtor (including as such whatever dry bal- 
ance may remain to him out of the firm after its afiGEurs are com- 
pletely wound up), while a partnership creditor has a right to be 
paid, not only out of the joint proi>erty of the firm, but also out of 
the property of the individual partners. The private creditor, 
who has only one fund to resort to, has an equity to compel the 
^iartnership creditor, who has two, to resort first to the partner- 
ehip assets until he exhausts them; but after this is done, the 
partnership creditor has as good a right to be paid any balance 
still remaining unsatisfied out of the private property of the 
partner as any other of his individual creditors. This is in 
conformity to the case of Wardlaw v. Oray, Dud. Eq. 118, with 
which we see no reason to be dissatisfied. 

But it is sufficient to condemn the assignment of Carson, that 

Jan. 1857.] Gadsdien v. Gabsov. 209 

while he has required a releaae to himself » and to the firm of 
Carson, Belser, t Co., he has not made a full sonender of 
his property. A debtor who surrenders only part of his prop- 
erty has- no right to exact a release as the condition of his cred- 
itor's acceptance. What right can he ha^e to exonerate his un- 
assigned assets from his jost debts? What right can he haTe to 
retain part of his property, and offer another part, and reqnire 
that the latter be accepted as fall satisfaction? Snch a preten ' 
eion has been too often and too explicitly condemned to leaTe 
the law at all doubtful on this point 

It is not necessary to look particularly at the condition im- 
posed, requiring a release to the firm as well as to himself; but 
it seems to be obvious that such an exaction is unjust and un- 
fair to the creditors of the assignor. Whenever debts of the 
firm are paid by the private property assigned, to that amount 
Carson becomes a creditor of the firm. Though it is said the firm 
has also made an assignment, it nowhere appears that there 
may not remain a balance sufficient to reimburse this partner 
for his advances. But after he is released, what is to prevent 
his putting this in his poeket at the expense of the releasing 
creditor? And as the partnership is also to be released, is not 
the creditor deprived of his right, by subrogation, to recover 
from the firm what his debtor has advanced for its benefit? 

It is needless to pursue this subject. The chancellor was well 
vnunanted in his conclusion that the assignment was partial, 
and therefore fraudulent, and in setting it aside as such. 

We regard the order continuing the functions of Ifr. Fur- 
man, divested of the power to apply the assigned assets to the 
purposes of the assignment, as an order appointing him receiver. 
No ground of objection has been taken to this, and therefore we 
see no reason to interfere with it. 

The decree is therefore affirmed, with the modification indi- 
cated in the foregoing opinion as to the distribution of the 
individual and partnership assets, and the appeal dismissed ac- 
cordingly. But we are disposed to enlarge the order for the 
benefit of the defendant Harlee. It is represented in his an- 
swer that he has some interests in virtue of a prior assignment 
made by Carson in 1864, or some other time. The master will 
therefore inquire into the evidence of this, and include in his 
report the nature and subjects of said prior assignment, and 
what aaid Harlee is entitied to under it, with any special matter. 
And it 18 so oirdered* 

W\fiDLAW, chancellor, concurred. 

210 MooRB V. Hood. [S. Carolina^ 

Dttkxin, chancellor. In respect to the invalidiiy of the aseign* 
menty I concur in the rcBult, and I concur also in the modifioa-^ 
tion of the decretal order. 

Decree modified. 


irxBSHiP Debts, and individual creditor may compel partnership creditor t» 
reeort to this fond first, but when this is exbaosted, the partnership creditor 
has an equal right to be paid the balance of his debt out of the private prop- 
erty of any partner. The following cases in this series in whole or in part 
sustain this rule: Miller t. E^Uly 67 Am. Dec. 905; CfumnUngn's Appeal, 64 
Id. 695; Baher'e Appeal, 59 Id. 752; Allen v. Center VaUe^ Co,, 54 Id. 333; 
Camp T. OrcuU, Id. 321, note 327; Emanuel ▼. Bird, Id. 200, note 203; Ladd 
V. Griewold, 46 Id. 443; Bardwell v. Perry, 47 Id. 687, and cases cited in tbo 
notes. In Massachusetts, by statute, the separate estate of the partners must 
be distributed first to the separate creditors: Howe t. Laiorenee, 57 Id. 68, 
and note. 

AssiGNMKKTS FOR BsNXFiT OF Cbsditobs Exactikg Rblbasb: See fFiboa'a 
Aecounte, 45 Am. Deo. 701« and note 700, citing prior cases; MiOer t. Ccmk^ 
«» ^ Ob., 63 Id. 2i8. 

MooBE V. Hood. 

[9 BlOHABOSOV'S Sqxtitt, 811.] 

Bill fob AooocimNo Lies against Ouabdiak Afpoikted nf Axoaaat 
Stats akd his Suretv. 

Court Pubsuks Laws of its Own Stats in Dxtxbminino Validitt of 
JuDOMKNT of a court of a foreign state, in the absence of evidence of » 
difference in the laws of the latter state. 

All Pbbsons, whbtheb Adults ob Infants, Who abb Intbbested in Suit 
IF Equttt, should be Made Pabties thebeto. 

To Enable Guabdian to Alienate Wards' Pbopebtt, he must obtain an 
order from a court of competent jurisdiction, in a proceeding in which tho 
wards are made parties; an order of sale obtained upon his ex parte ap- 
plication is a nullity. 

OuABDiAN is Liable to Aooount to Wabds fob Full Valub of Chat- 
tels sold, under order of sale obtained upon his ex parte application. 

Bill for an accounting by John and Maiy Moore, wards, 
against Thomas S. Hood, guardian, and John H. Hood, surety. 
The matter was first referred to a commissioner, who reported 
that certain slaves became the property of the plaintiffs under 
the will of John Harris. Thomas O. Hood was appointed their 
guardian by a court of North Carolina, and upon his guardian's 
bond John H. Hood was surety. The guardian applied, ex 
parte f to the court of North Carolina for an order of sale of the 
slaTes, on the ground that the slaves were kept at a loss, and 
that the interests of the wards would be promoted by the sale.. 

May* 1867.] Moore v. Hood. 211 

The order of sale was made, pursuant to which the guardian sold 
the slaves. He did not obtain an adequate price for the slaTes, 
though this, as the commissioner reported, was due to no fault 
of his, and the sale was fairly conducted. The cause was first 
presented upon exceptions to the conclusions reached by the 
commissioner^ and the court decreed that the defendants be 
charged with the true and full value of the slaves at the time of 
the sale, with interest thereon from the day of the sale. The 
defendants appealed: 1. Because the court erred in so decree- 
ing, instead of charging the defendants with the price bid; 2. 
Because the order of sale was made by a court of competent 
jurisdiction, and the sale was made pursuant to the laws of that 
jurisdiction, and was therefore a valid sale; 8. Because this 
court has no jurisdiction, and the defendants are not liable to 
account herein. 

WiUiams, for the appellants. 
OUnion, contra. 

By Oourt, Wabdlaw, Chancellor. The objection to the juris- 
diction of the court, presented by the third ground of appeal, 
lacks even plausibility. The suit is for account by wards against 
their guardian and his surety, who had also been executors of 
the estate from which the property of the plaintiffs now in con-^ 
troversy was derived; and account is one of the most general 
heads of jurisdiction in this court, and most commonly exer« 
dsed, as in the present instance, in suits by beneficiaries against 
trustees. It is immaterial that the trustee here was invested 
with his powers and duties by a foreign tribunal; for surely his 
fiduciary relation is not terminated by removal of himself and 
the trust funds beyond the limits of the state in which he was 
appointed. It would disgrace the courts of any civilized country 
to afford immunity to a trustee who fled to their jurisdiction 
that he might embezzle the funds committed to his trust This 
suit is not on the bond of defendant as the gist, such as an action 
of debt, which can be prosecuted only in the court of common 
pleas. It is a bill for account, in which the bond is used merely 
as collateral evidence of the defendant's liability. 

The second ground of appeal affirms that the order for sale of 
the slaves was granted by a court in North Carolina which had 
jmisdiciion of the subject according to the laws of that state; 
and that the sale was made according to these laws, and should 
be treated as valid by foreign tribunals. 

It sufficiently appears that the court of pleas and quarter 

^12 MooftS v. Hooa [a Carolina^ 

' ftessioxiB which granted this order has jnxisdiotion of ihe subject 
under the law of North Oarolina; but no proof is offered that 
Iby the procedure of that court a guardian on his single petition 
' ean obtain lawful authority to sell the slaTcs of his ward, nor 
-mdeed that the law of that state affecting the questions of this 
'base differs from the law of South Carolina. If such proof had 
Ikeen made, we might have recognized and followed the law and 
procedure loci coniractuSf but in the absence of such proof, we 
are left to the lights within our territory, and must decide the 
case as if the order had been granted by a court of this state of 
competent jurisdiction. It is fairly presumed that states deriving 
their institutions from a common origin' proceed on the same 
principles of adjudication, and attain the same conclusions, un- 
'less changes by legislation or decisions be shown : Beid v. La- 
^fnar, 1 Strobh. Eq. 38, 39. Putting aside this fact of common 
origin, every court necessarily pursues its own rules and doc- 
trines for the interpretation and execution of contracts and 
judgments, although made or pronounced in a foreign country, 
where the evidence exhibits no difference concerning the subject 
in the law of the foreign country. No other mode of decision 
is rational and practicable. 

In equity, the general rule is that all persons, whether adults or 
infants, shall be made parties to a suit who are materially inter- 
ested in the object of the suit and the questions to be therein 
decided. As between trustees and beneficiaries, all of both 
classes are necessaiy parties generally, although an exception is 
tolerated in suits by beneficiaries where one of several trustees 
is pursued for his particular breach of trust; and exceptions are 
at lowed in suits by trustees: 1. Where the object of the suit is 
iDcrely to obtain from some third person possession of the trust 
property, and it is indifferent to the equitable claimants whether 
the trustees succeed or fail; and 2. Where the trustee fully 
represent the beneficiaries. The last exception is the only one 
requiring consideration in this case. The most familiar in- 
stance of thi^ exception is in suits by or against executors and 
administrators concerning the personalty, as to which they are 
\j law the owners and the representatives of the legatees and 
distributees; and usually in such suits the rights of the benefi- 
ciaries are held to be sufficiently represented and their interests 
protected in the names and persons of their said trustees: 
Btoiy's Eq. PL, sees. 207, 208; Calvert on Part. 8, 20, 207, 815. 

The rule requiring beneficiaries to be parties where they are 
interested in the questions for adjudication is applicable, al« 

May, 1857.] Moobe v. Hood 213 

ihoiigli the tnisteeB hsTe the legal tiUe, for trustees axe not the 
real owners of the tmst estate, and are rather agents of the 
beneficiaries for the execution of certain trasts, and it is among 
their duties to require the real owners to be brought before the 
eonrt: WeaOerby t. St. Owrgio, 2 Hare, 624; Holland t. Baker, t 
Id. 68. Of course the rule is more vigorously exacted where 
trustees hsTe not the legal title of the trust estate. It was ad* 
judged in BaUey ▼• Patiersouy 3 Bich. Eq. 156, and recognized in 
Long ▼• Caaon^ 4 Id. 60, that a guardian has not the legal title of 
his ward's chattels, and that his sale of them is voidable at the 
option of the ward. Long ago it was decided in Inwood v. 
jyyne, Amb. 41, S. 0., 2 Eden, 148, that a guardian could not 
change the character of his ward's estate without the authority 
or sanction of the court; and this doctrine was recognised in 
Capduxrt T. Huey, 1 Hill Ch. 409. In my opinion, alienation 
by a guardian of his ward's chattels, under an order obtained on 
his ex parte application, is not materially distinguishable from 
his private, self-moved alienation. On such application the 
court does not properly pronounce any judgment, and simply 
expresses a professional opinion, assuiping the tmth of a one- 
sided statement of facts which may mlBlead. Suppose one for- 
merly guardian should obtain an improvident order from the 
court on his single petition for the sale of his late ward's chat- 
tels, after the ward had obtained full age, upon some showing, 
apparently strong, that a sale was necessary for the convenience 
of settlement, or other reason, none would contend that the 
owner would be barred by the plea of ree judicata; and surely 
infants, a class peculiarly within the protection of the court, 
are entitled to as benignant relief as adults in the same circum- 
stances. In the case supposed, the fiduciary relation would 
not be terminated until full and fair settlement between the 
guardian and adult ward; and the case of an infant seems to be 
stronger where trust and disability concur in his behalf. 

It is argued that the order of the court in this case is, in 
e£Feot, a mere direction to a trustee concerning the management 
of his trust, and that in such applications for direction and ad- 
vice guardians sufficiently represent their wards. This reason- 
ing proceeds on misapprehension of the facts. Management of 
an estate implies its administration in its existing state; but the 
order here affected the corpus of the estate and a change of its 
nature. Authorities have already been cited to show that a 
guardian is not legal owner, and cannot change the nature of 
Us ward's estate without judicial leave obtained in a regular suit 

214 Moore v. Hooix [S. CSarolmai 

where the real owner may be heard. Again: the court owes the 
duty of determining the rights of litigants when presented by 
regular pleading, and has the power of compelling parties 
to execute its decrees; but it is under no obligation to bestow 
professional counsel on those who may solicit advice, however 
earnestly, in violation of the rules of practice, and cannot enforce 
its opinions upon persons unpresented in a controversy. Trus- 
tees of charities perhaps may obtain directions from the court 
without much nicety in their forms of application; but ordinary 
trustees have no privilege not belonging to suitors generally. 

The practice of this court in South Carolina on this subject of 
parties to suits was not formerly so strict as that which now pre- 
vails. In Spencer v. Bank, Bailey Eq. 468, land had been sold 
for payment of the debts of an intestate under a decree of this 
court obtained on the ex parte petition of the widow of the intes- 
tate, she being a distributee and the administratrix; and it was 
held that infant distributees were bound by this decree so far as 
the title of the purchaser of the land was involved. There were 
other important issues in this case, and the judgment has always 
been followed and approved so far as it decided that a master or 
commissioner is a proper substitute for the parties to make con- 
veyances in partition (which was the great point in controversy), 
and so far as it decided that infants equally with adults are 
bound by a decree until it be reversed or vacated. It is very 
questionable, however, whether in the stricter procedure now 
pursued an administrator would be recognized in this court as 
adequately representing the heirs in a suit concerning the lands. 
As to personalty, he, being the legal owner, may be treated as 
representative of the distributees; but as to real estate, he is 
representative only because the statute 5 Gteo. II., c. 7, 2 Stat. 
670, makes lands, like personalty, liable in this state to the satis- 
faction of the demands of general creditors. In the construction 
of this statute, the law court determined, Hartin v. Lalta, 4 Mo- 
Oord, 129, D'Urphy v. Neilson, Id., note, that the lands of a 
testator or intestate may be sold for his debts under a Jl>/a. 
against his executor or administrator, without making devisees 
or heirs parties to the proceeding by notice or otherwise, and 
although there might be personal assets sufficient to satisfy the 
debts. The doctrine of these cases has been much disparaged in 
subsequent cases, Hull v. Hidl, 3 l^ich. Eq. 87, and cases there 
cited, but not overruled; and it afforded the principal ground for 
the decision in Spencer v. Bank, Bailey Eq. 468, on the point 
(n question. This last case, rightly or wrongly decided, does 

Maji 1857.] HooBX v. Hood. 21ft 

not conclade the one under oonsideiationf for the reaaonB that 
ihere is a great differenoe, abready diecassed, in the power over 
the estate between an administrator and a goardian; that there, 
and not here, the controversy was with an innocent porchaser, 
and that more recent cases support the doctrine of the circuit 
decree now in question. 

It is not intended to be intimated that the purchaser in this 
case could not have been successfully pursued if he and the 
slaTCs had been found within the jurisdiction. The sound view 
as to the protection of purchasers in judicial sales is well ex- 
pressed by Lord Bedesdale, in Bennett v. Hamill, 2 Sch. A Lef. 
577, 578. " A purchaser may rightfully presume that the court, 
before its order for sale, used the proper measures for the inves- 
tigation of the rights of parties, and on such investigation prop- 
erly decreed a sale; but he must see that the decree binds the 
parties claiming the estate, or in other terms, that all parties to be 
bound are before the court." 

In Boggs v. Adger, 4 Bich. Eq. 408, it appears by the circuit 
decree, most of which is suppressed in the report, that Chancel- 
lor Harper, who delivered the opinion of the court of appeals in 
Sj^encer t. Bank^ supra y refused to make any order on the peti« 
tion of an administrator to change the investment of infants' 
funds, although confessedly judicious, on the ground that the 
infants were not parties to proceeding. 

In SoUee v. Crofl, 7 Bich. Eq. 43, it was held that orders for 
sole of the trust estate of infants, obtained on the ex parte peti- 
tion of the trustee, do not operate as estoppels of the infants. The 
reasoning on which the decreed proceeds is, that it is plainly 
nnjust and against equity that any claimant, legal or equitable, 
«hould be barred by the judgment in a controvesy where he was 
not fully represented, nor permitted to assert his rights before 
the court, and that infants should be represented by responsible 
next friends who have no adversary interests which might ob- 
struct the full hearing of the infants' claims. This is a direct au« 
thority on the question. No distinction between that case and 
ihe present has been suggested, except that there the trustee was 
himself the purchaser of the slaves sold. The slave Jim, and 
ihe hire of the slaves while in Pearson's possession, for which 
the trustee was charged, are not within this distinction; but 
{Missing by this, the purchases of the trustee had been expressly 
<x>nfirmed by the court on his petitions, and the practical ques- 
tion of the case vras whether the infants were so represented by 
ihe tmstee as- to be baned by the decrees; and it was adjudged 
4hat they were not. 

216 Snoddy v. Finch. [S. Oarolinaw 

JudgQ Evandy speaking for the law court in Wadgworih t. Lei- 
Km, 2 Speers, 277, says: '* The decisions fully established that 
where effect is attempted to be given to the judgments of another 
state they are examinable, so far at least as to inquire whether 
the defendant was a party to the proceeding; for by the laws of 
all civilized countries no man is bound by a judicial proceeding 
where he was no party, had no notice, and no opportunity of 
making his defense:" See MiUer v. MUltr, 1 Bailey L. 242; 
Shumtoay v. SHUman, 6 Wend. 449. K the foreign court recog- 
nized as a party the person sought to be charged here, effect 
would be given to that recognition, although he may not have 
been made a party according to our procedure. 

The second ground of appeal is dismissed. 

On the first ground, it is deemed unnecessary to make addi- 
tional remarks. 

It is ordered and decreed that the circuit decree be affirmed^ 
and the appeal dismissed. 

Johnston and Daboan, chancellors, concurred. 

DuNziN, chancellor, delivered a dissenting opinion. 

Appeal dismissed. 

Equitt mat Compel Nom-besidekt Guabdiak and snretiei to aooonntr 
/Vott V. Wright, 67 Am. Dec. 767. 

Foreign Laws must be Proved; Thet will not be Taken Koncs ow 

Judicially: Whidden t. Stdyt^ 63 Am. Dec. 661, and cases dted in the note- 

866; Peek v. Hibbard, 62 Id. 605; Bnffard v. HoUiman, 60 Id. 223. Theyt 

tmst be pleaded as well as proved: Peek ▼. IJibbard^ 62 Id. 606; Outm v. 

Wowdl, Id. 785. 

All Pabtiss Interested should be Joined in Suit in Equitt* 
BaweU v. Harvey, SO Am. Deo. 376; Bearddey v. Knigii^ 83 Id. 183; Her^ 
rkui^on t. Httbbard, Id. 426; Dow v. JeweU, 46 Id. 371. 


[9 Biohaxobon's Equitt* 8fi6.] 

Febson Properly Entitled to Cusi^ody oj Title Deeds of bis Estat* 
may oome into equity and obtain a decree for a specific delivery of then^ 
if they be wrongfully withheld. 

Hell to Obtain SpEcino Delivery of Title Deeds should Alleos 
danger of loss or destruction of the deeds in the keeping of him who- 
withholds them. 

flown OF Attorney is Essential Part of Conveyance by Attorn by» 
and the grantee may maintain a bill against the attorney for its specifio- 
delivery, but since other purchasers from the attorney may need the in- 
stniment to establish the agency, the court will decree that the defeii>I- 
•nt deposit it with the r^grUter of tb9 court for the use of all inte**e8t««l.. 

Nov. 1857.] Snoddt v. Finch. 217 

Bill to obtam po o e ooo ion of a power of attomej, or to haT# 
it placed in safe custodj. The opinion states the eaae. 

Bcbo, for the appellant. 
Dawkmg, conira. 

By Court, Waxdulit, Chancellor. The phdntiff, John Bnocldj» 
received a oonvejance for a tract of land in Spartanburg die^ 
tiicty NoTcmber 16, 1853, which was executed in the name of 
Harvey Finch, by the defendant John S. Finch, as attorney uv 
fact. The defendant acted under a regular power of attorney, 
attested by two witnesses; but these witnesses reside in Ala* 
bama, and neither of them has made probate of the execution 
of the instrument, nor has the instrument been recorded. The- 
plaintiff, justly regarding the power of attorney as an integral 
part of his conveyance, sought its delivery from defendant, and 
at one time the latter, while the plaintiff held the paper in hi» 
hands, promised to deliver it to plaintiff if he would pay tho 
price of the land; whereupon the plaintiff laid the paper on 
a table, paid a portion of the purchase money, and drew hia 
note for the balance, and the defendant picked up the power, 
saying he should keep it for his own protection, as he had sold 
some personalty under the same authority. Mr. Edwards, one- 
of the counsel of plaintiff, testifies that he too applied to de- 
fendant for the power, and proposed that it should be sent to- 
Alabama for probate, at the joint expense of the parties; but 
defendant declined this proposal, as the paper might be lost 
by the way, and offered on his part to give a copy. The- 
pecnniaiy means of the defendant are ample. The plaintiff ia 
in possession of the land, and no special jeopardy of his title- 
is alleged. Defendant admitted he had a receipt from his prin* 
dpal ratifying his acts as agent. 

The bill was filed to obtain possession of the power of attor- 
ney, or to haye it placed in safe custody. The chancellor oa 
circuit dismissed the bill for want of equity, and the plaintiff^ 

A person properly entitled to the custody of the title deeds of 
his estate may obtain a decree for a specific delivery of them if 
they be wrongfully withheld or detained from him. This is a. 
very old head of equity jurisdiction, for it has been traced back 
to the reign of Edward lY.: Mitford's PI., by Jeremy, 117,. 
note I; 2 Story's Eq. Jur., sec. 703; Armitage v. Wddsioorih, 1 
lEadd. 192. Some remedy in such case might be afforded ix^ 
a court of law by action of trover or detinue; but as damage* 

218 Snoddy v. Finch. [S. Carolina. 

only are recoTeiable there, the relief is mneh less adequate and 
complete than bj a decree for specific deliTery. A bill for such 
purpose ought to allege danger of loss or destruction of the deeds 
in the keeping of him who withholds them; but the defendant 
here does not complain of the omission of this allegation, and 
his misconduct in regaining possession of the letter of attorney 
justifies apprehension of the safety of the paper in his custody. 
He does not need it for his own protection, as the receipt of his 
principal secures him against the disavowal of the agency; and 
it is an essential part of the couTeyance to plaintiff, and without 
the adduction and proof of it, he could not demonstrate in«any 
suit his title to the land. It might be held without straining 
that the defendant deliyered it to the plaintiff, and then retook 
it by artifice. 

It is possible that defendant or other purchasers from him as 
agent may find occasion for the use of this instrument in estab- 
lishing the agency; and this may constitute a sufficient reason 
for not placing the power in the ezclusiTe possession of plain- 
tiff, when full relief may be administered to him in another 

It is ordered and decreed that the circuit decree be reyersed, 
and that defendant deposit said power of attorney in the office 
of the register of this court for Spartanburg district, with leave 
to any party having an interest in it to apply to the court for an 
order for its use. Let the defendant pay the costs. 

JonrsTov, Duxxxv, and Dabqah. chancellors, cononzied* 
Oearee reversed. 





MuBBAY V. South Cabolina Railboad Gompaitt. 

[10 BtaukMimcaCu Law. 23T.] 

Sooth Casolin a Fkivob Law RiQuntxs Gattlb to be Fbrobd out, and 
MOT XH. It ia therefore not nnlawful for the owner of horaei to permit 
them to ran at large over lands not guarded by mich a fence ae the law 


and the owner thereof ia not guilty of negligence in allowing him to be 
at large. 

OwMSB BuK8 Risk oitlt of AoozDiifTAL Injubiu to Hobsb which he 
penniti to ran at large, and oan recover for any injury thereto from the 
negligence of another. 

Pboof of Damagx Bonk by RAn.ROAP Tbain Estabushju Case of Nso- 
UOKNCX, and not of accident, where nothing more appears; and the bur* 
den of proof is thereby thrown upon the railroad company to show want 
of negligence in its agents in charge of the train; and their absence at 
the trial creates a strong presamption against the dompany, for they 
alone ooold give the ciroamstances attending the doing of the injnry. 


Bblibyb CJompamt OF BuBDEB OF Pboof that the killing was accidental, 

and not by negligence. 
OBflT&uonoK OF PuBUO Gbobsino ovkb Railboad is Kuibabcx; and the 

company is liable for all the consequences that may ensne from leaving a 

croaring obstraoted by a tnin of cars. 
Bfkbd OF Tbaxb mubt bb Slacsbbbd axd Snmcix^fT Wabbino Grvav 

when a crossiiig is approached; and these requirements most not appear 

to have been dinegarded in any instance, when the company undertakes 

to show that all proper means were used to prevent the injnry com- 

Cabe by the plaintiff for ihe Talue of a horse killed by one of 
{he defendant's trains. The horse had been borrowed by one 
liagill, who left him tied on the opposite side of the railroad 


220 MuRRAT t;. South Carolina R. R Co. [S. Carolina. 

track from the plaintiff's bouHe. In Magill's absence the hora^ 
broke the rope, and followed the public road in the direction ol 
the plaintiff's house, until the defendant's track was reached. 
Finding the crossing obstructed by a train of cars on a turnout, 
the horse wandered about the track until into the night, when 
another of the defendant's trains came aloDg and killed him* 
From the tracks of the horse, it appeared that he had been chased 
some distance by the cars before being overtaken. A nonsuit 
was moved for, but refused; and the defendant introducing no 
evidence, the case was submitted to the jury upon instructions 
to the effect that it was only necessary for the plaintiff to prove- 
the fact of the killing by the defendant's train, and that there- 
upon a presumption of negligence arose which the defendant 
must rebut; that as the injury was committed by it, and its 
agents and servants were the only persons who could fumisli 
the requisite information, their absence at the trial raised a 
strong presumption against it; that animals had the right to 
wander upon the unindosed portions of the railroad track, aud 
that if any injury occurred to them from the agents of the rail- 
road company, it must be shown that the injury happened wilh- 
out negligence on their part. The defendant appealed, aiul 
renewed its motion for a nonsuit, and also moved for a new thai 
for errors in the instructions to the jury. Further &ct8 appear 
in the opinion. 

Conner , for the appellant. 
Fressley^ contra. 

By Court, Wabdlaw, J. Beyond the statements of the report^ 
it appears to this court that the meeting-house where the horse 
was hitched was four or five miles west of the railroad; that 
the road which the horse followed was a public road; that there 
is on the railroad a deep cut at the crossing of the public road^ 
and for a considerable distance above and below it, the crossing 
being made practicable by cutting down, at that point, the 
banks on either side; that the train of cars which obstructed 
the cros^iDg was a freight train that had early in the evening 
stopped for the night; and that the passenger train which killed 
the horse seemed, so far as could be judged from the footprints. 
of the horse, to have passed the turnout without slacking speed» 
and to have overtaken the horse running briskly. 

The fence law, which has prevailed in this state from a time 
soon after the distinction between forest and cultivated lands 
was made by the settlements of Europeans, has always required 

Jan. 1867.1 HuBRAT v. South Cabouna R R Oa 221 

that cattle should be fenced out, and not fenced in: See Acta 
1694, 2 Stats. 81; 1827, 6 Stats. 881. It is not, then, unlawful 
for the owner of horses or cows to permit them to go at large, so 
as to roam upon all lands, of his own or of others, that are not 
guarded by a fence such as the law preaenbes; and the entiy of 
a horse or cow upon the uninclosed track of the railroad is no 
trespass. The owner of cattle who permits them to room runs 
the risk of all damage which they may accidentally receiTe, and so 
may sometimes be said to be n^ligent of his own interest; but 
he is not guilty of legal negligence such as embarrass his reooveiy 
from a person who through negligence hurts the cattle. 

This court perceiTes no negligence, then, on the part of the 
plaintiff to be ascribed to the conduct of his bailee, who, after 
attempting in Tain to catch the horse that had been fastened in 
the ordinazy way and had escaped, retndned from pursuing him 
four miles, and allowed him to go at large upon the puUio road 
that led to his stable. 

The court acquiesces, too, in the reference which the recorder 
made to Danner ▼. Sauih Carolina B. B. Co.^ 4 Bich. L. 829 
(55 Am. Dec 678], for the presumption which arises from the 
killing of the horse by a train of cars, established and unex- 
plained, and for the unfaTorable inference raised by the absence 
of all the defendant's agents who were at the killing. 

Negligence, rather than accident, is shown by proof of dam« 
age done by a train when nothing more appears. The nature 
of the machinery used, and of the railway on which it is used, 
and the risk which, from any obstruction encountered, the en- 
gineer and all the lives and property under his care necessarily 
incur, are not of themselTcs suflBcient to rebut the presumption 
of negligence; but these matters are worthy of much attention, 
and when strengthened by other sufBcient circumstances, would 
avail to rebut. Such other circumstances must usually come 
from the agents of the railroad company, who alone are usually 
cognizant of them, and in the absence of such agents, cannot be 
established by conjecture. In this case it appeared from the 
plaintiff's testimony that the killing of the horse was done at 
night. That of itself is insufiScient to show that the killing was 
accidental. If it had been proved that the night was foggy; 
that the train was in all respects properly equipped and man- 
aged; that the horse suddenly jumped upon the track, or stood 
still, or was hidden from view by a curve in the road; or, in 
general, that from the time the horse could first have been seen 
until he was killed all proper means and appliances were used 

222 Murray u South Carolina R K Go. [S. Carolina^ 

io aToid him, and used in vain — a case of accident would haT& 
been made out. 

But, beyond the ordinary presumption, unrebutted, it appearsi 
in this case that the public road along which the horse attempted 
to cross the railroad was obstructed by the company's cars, and 
that the horse wandered up and down in the cut, whose banks 
he could not climb. The obstruction of the public road was a 
wrong done by the company which, under such circumstances, 
would have justly entitled the plaintiff to recover, even if the 
killing by the passenger train had been shown to be, so far as 
that traiu was concerned, wholly accidental and blameless. The 
thirty-third section of this company's charter, 8 Stats. 4.15, gives 
to the company the right to run its track along or across a pub- 
lic road only on condition that the road shidl not be thereby 
obstructed; therefore the banks of the cut were sloped at the 
crossing. The obstruction of the crossing was a nuisance. 
Either the turnout should have been large enough for the trains 
which stopped there to have stood above or below the crossing, 
or else the cars of a tndn at rest should have been detached, so 
as to give a free passage. This duty of leaving crossings unob- 
structed, which both common law and statute require, must be 
observed by the company, unless it is willing to take all conse* 
quences that may ensue from its violation. There is a further 
duty of slacking speed in passing a turnout, and still a further 
one of giving sufficient warning when a crossing is approached 
(both of which are recognized by the custom of railroads, and, 
we believe, by the regulations of this company, and both of 
which are brought to mind in this case), which must not appear 
to have been disregarded in any instance where the company 
undertakes to show that all proper means were used to avoid 
damage complained of. 

The motion is dismissed. 

O'Nball, Wcthebs, and WmmsB, JJ., concurred. 

Motion dismissed. __^^ 

Common-law Ritlb Bequibino Gattlb to bs Fbkokd ih, akd not oirv» 
WHXBB IN FoRCK: See Toruiwanda R. /?. Co. v. Munger, 49 Am. Dec. 239, 
and note, where the question ia considered at length; Vkktburg etc, B. R, v. 
Patton, 66 Id. 552, and note collecting other cases. The principal case la 
cited In McCall v. Chamberlain^ 13 Wis. 640, and Curry v. Chicago etc. i^y, 
43 Id. 682, to the point that the reason that the common-law rule in regard 
to fences has not been adopted in some of the states ia that its strict enforce- 
ment would be productive of hardships where raising of iiye-atook forma an 
important feature of the industry of the country. 

Jan. 1867.] Maktdt v. Manxb. 228 

LiABiuTT lox Imjumob TO Ahiicau TBESFAasao on RAXhWAT Tkacks: 
See Tonawanda IL R, Co. ▼. Ifwtffer, 49 Am. Deo. 239, and note tberefco 
folly diseiusing the qoestion; eee aleo VkMmy etc. R. J?, t. FatUmt 06 
Id. 662p ftad note ooUeottng other ciiei. 

How Fas KaouaxNOi a PBamnoD ibmc Mxri Fact or Ikjvkt: 8e# 
HoOrook V. Utiea eic, B. B.^ U Am. Dec. £02; Chieago S M. B, B, t. 
FaUhin^ 61 Id. 66, and notee thereto. Tho kiUiiig of <mtilo hy m nflroAd 
taiin li prima fob^ eridence of n^gUgenoe: Boqf t. Baibvad Oa,, 4 8. GL 62, 
aStkitnff tiio prinflipal 

Mabun v. Manbb. 

CIO BunuBoeoa^ Law, 171.] 

tenm Deawh ov PABnoirLAB Fuitd, aitbb Konci to Dbawbi, Oomn- 
TOTBi Equitabli Assiohiibit, and binds the fand, fro iMfo, in tho 
handiof thedx»wee. 

Dmaarsoa bt Cbkditob vob Apfbopbiatioit or Debt ahd Ammt or 
DsBiOE ia all that ia neoeanry to oonstitate alegal tfanafer of the debti 
aad neither the omiaaion nor negloot of the debtor to enter the tranafer 
in hia booka ooold operate' to defeat an arrasgement dictated by hia cred- 
itor and aaaented to by himaelf . 

BueoBsnoH, filed by the plaintiff, an attaching creditor of 
Samuel Solomons, against the defendant as garnishee. From 
the report of the presiding judge, it appears that Solomons was 
a factor in the city of SaTannah, Geoigia, and did the boai* 
nees of the defendant and his mother, Mrs. Catharine llaner, 
whose business was conducted entirely through the agency 
of the defendant. Solomons failed in business March 27, 
1854, and the plaintiff lodged his writ in foreign attach- 
ment March 29, 1864, in the sheriff's ofBce for Beaufort dis- 
trict, and a copy was serred on the defendant as garnishee 
on March 80, 1864. On the books of Solomons, March 80, 
1864, there was standing to the credit of Mrs. Maner the sum of 
one thousand one hundred and seventy-eight dollars and eighty- 
seren cents, and to the debit of the defendant two thousand 
three hundred and eighty-five dollars and sixteen cents. Some- 
time in January, 1864, there was an understanding between all 
the parties that a change should be made in these accounts, and 
about the seventh of January, 1864, the defendant, as agent of 
Mrs. Maner, instructed Solomons to transfer to his, the defend- 
ant's, account the amount which was due to his mother, and which 
he had full authority to do. The transfer was actually made in 
Solomons's books on March 31, 1864, as of date, however, the 
tenth of March, 1864. No special reason for not making the 

224 Mabtin v. Maker. [S. Carolina^ 

transfer sooner was giyen by Solomons, but lie testified that it 
was entirely aocidental, and that' had the defendant been an irre- 
sponsible man , he had no doubt he would have promptly made the 
transfer. There was no controversy about the fact, and no ques« 
tion as to the bona fides of the transaction. The defendant paid 
into court the sum of six hundred and sixteen dollars and f orly- 
six cents, and was entitled to retain as creditor in possession, as 
conceded, five hundred and sixty-eight dollars and sixty-eight 
cents; and the balance remaining in his hands through a nustake 
in calculation was agreed to be seventy-one dollars and thirteen 
cents, though from the figures given it appears to have been 
twenfy-one dollars and fifteen cents. The whole controverdy 
was whether the defendant should be charged with the amount 
transferred from his mother's account to his own, and the case 
was submitted to the jury without argument. A verdict was 
returned for the actor in the suggestion for the sum of one 
thousand three hundred and seventy-nine dollars and forty- 
two cents, which included this amount transferred, and interesti 
being a factor's account for advances from March 30, 1854. Tht 
defendant appealed, and now moves for a new trial. 

Fielding, for the motion. 
Ominghastf contra. 

By Court, Munbo, J. In IhUock v. Barris, 8 T. B. 180, 
Buller, J., puts this ^sae: "S'ipx)Ose A owes B one hundred 
pounds, and B owes C one hundred pounds, and it is agreed 
between them that A shall pay G the one hundred pounds. B's 
debt is extinguished, and G may recover that sum against A.'* 
And in Israel v. Douglas, 1 H. Black. 239, A, being indebted to 
B, and B indebted to G, gives an order to A to pay G the sum 
due to him from A; the order was accepted by A, and on his 
refusal to comply with the order, G may maintain an action for 
money had and received against him. Gould, J., said: "The 
case is like that of a man having money due me in his hands, 
which I order him to pay to another. Now, if I pay money to 
you for another person, it is money had and received by you to 
his use. But where is the real and substantial difference, 
whether I in fact pay money to you for a third person, or 
whether I give you an order to pay so much money, to which 
you expressly assent? In reason and sound law, it is money 
had and received to the use of such third person. If my debtor 
tenders me money, which I give back to him and tell him to pay 
it to another, he then, in point of fact, receives money to the 

Jan. 18it7.] Mabtin tx. Mavul iU 

use of the other. Bui is there any diiference between eneh a 
case and the preeentV See also Ch. Oont 682» where the 
whole doctrine is discussed and the authorities cited. 

Naj» so far haye courts of Liw gone in Tnaintaining equttaUe 
assignments that they have held, when an order is drawn on a 
particular fund, that, after notice to the drawee, it binds the 
fund in his hands: Bobbins ▼. BuriBOome, 8 Me. 456; MandmUe 
▼. Wdch, 5 Wheat 277. 

Let us apply the principle to the case in hand. As the de- 
fendants agency has not been controrerted, suppose that, in- 
stead of directing the amount which was due to his principal fay 
Solomons to be transferred to his own credit, be had drawn the 
fund out of Solomons's hands and paid it back to him in part 
payment of his own debt. As the authorized agent of his 
mother, it was entirely competent for him to haye done so; and 
where, it may be asked, is the difference between his receiving 
the money himself and paying it back to his creditor, and direct* 
ing its appropriation by the debtor of his principal either to the 
payment of his own debt or to any other purpose? 

All that was necessaiy to constitute a legal transfer of the 
debt was the direction for its appropriation by the creditor, and 
the assent of the debtor; the moment the latter assented to it 
the transfer was complete, and neither the omission nor neglect 
of the debtor to enter the transfer in his books could operate 
to defeat an arrangement that had been dictated by the creditor 
and assented to by himself. 

It is beyond all controversy, then, that by the operation of the 
agreement between Solomons and the defendant, acting as the 
lawfully constituted agent of his mother, the interest of the latter 
in the fund in question was extinguished, and became completely 
vested in the defendant; and it was quite immaterial, so far as 
concerned the validity of the transfer, whether a formal entering 
of the transaction had ever been made in the books of Solomons 
or not. 

The plaintiff is therefore directed to enter a remiUUur on the 
record for so much as the verdict exceeds seventy-one dollars 
and thirteen cents, the amount admitted to be due by the de- 
fendant; and on this being done, the motion la dismissed; but if 
he should neglect or refuse to enter such remiUUur on or before 
ihe first day of March next, then the motion is granted. 

OnSmkUs, WiBDLAW, Wdsebs, and Whetnxb, JJ., concurred. 

Motion granted. 


tt6 Cabiochael v. Buck. [EL CazoTiiuii 


AMD NoncB TO HoLDEB 07 FuND, and will be valid pro iantoihtbaai formal 
acceptance by him: See note to Field y. Mayor etc. qf New Yorhf 67 Am. Deo* 
HI; Me alflo NeamUh v. Drum^ 42 Id. 260, and note oolliwting other cans 
In thu aeriee. 

Gabmiohael V. Buck. 

[10 Biobabimov'b Law, Stt.] 

Himself No Title, in genend, except by a bona Jlde sale In market 
overt, and no market overt exists in South Carolina. 

Bfboial Agent can Bind Principal only to Extent of AcTTHOBirr Con* 
FERRED BT PRINCIPAL; but the principal is bound by the acta of hit 
agent, authority to do which he holds him out to the world to poescss» 
although he may have given him more limited private instructions, un* 
known to the persons dealing with him. 

Bona Fidb Purchaser, without Notice, of PersoiTal Propbbtt from 
Agent will be Protected, where, although the agent is intrusted 
with possession for a special purpose, the principal has by his act or con- 
duct allowed the agent to appear to the world as the true owner. 

Tboyeb. The plaintiff employed one Hu^gins to conduct a 
laft of timber down the Little Pee Dee river to Georgetown, and 
there deliver it to a factor at that place. Huggins employed 
his brother to assist him, but iD stead of taking the raft to 
Georgetown, he stopped at one of the defendant's timber depots 
on the river, and there sold it to an agent of the defendant, rep- 
resenting to him that he was the owner. The presiding judge 
referred the jury for the law of the case to Powell t. Buck, 4 
Strobh. L. 427, and the juiy found for the plaintiff. The de- 
fendant appealed, and moved the court for a new trial. 

Edrlee, for the appellant. 
SimonUm, contra. 

By Court, Wabdlaw, J. In the case of Powell v. Buck, 4 
Strobh. L..427, the defendant was made to answer to the tme^ 
owner for a raft of timber, which he had purchased from a car* 
rier under circumstances very similar to those which exist lu. 
this case. But it will be observed that there a verdict had been 
found for the plaintiff, under instructions which submitted ta 
the jury questions of imputed fraud; and we cannot suppose- 
that the case was understood by the court to settle that, in nil 
cases of sale by a raftsman, there should be accountability froia 
the purchaser to the true owner without consideration of specLii 

Jan. 1857.] Cabmichakl v. Buck. 227 

circamstances, although there is mnch in the opinion to fdvor 
such a supposition. If special ciicnmstanoes, to be weighed by 
a jury, may modify the general rule, then the case before us 
must be tried again, for all special circumstances were excluded 
from view by the application of a rule which was taken to be 

The general rule of the common law unquestionably is, that 
a title to personal property cannot be acquired from a person 
who has himself no title to it, except only by a bonaftde sale in 
market overt. In all cases of sale not in market overt (and we 
have no market overt in this state), the rightful owner, having 
committed no fault, may recover the goods sold or their value 
from an innocent purchaser. In like manner, the general rule is 
that a special agent can bind his principal only to the extent of 
the authority conferred by the principal; but in relation to 
agency, this rule is modified by a " principle which pervades all 
cases of agency, whether it be a general or a special agency, to 
act. The principal is bound by all acts of his agent within the 
scope of the authority which he holds him out to the world to 
possess, although he may have given him more limited private 
instructions, unknown to the persons dealing with him; and 
this is founded on the doctrine that where one of two persons 
must suffer by the act of a third person, he who has held that 
person out as worthy of trust and confidence, and having au- 
thority in the matter » shall be bound by it: " Story on Agency , 
sec. 127. 

This doctrine applies with equal force to protect third per* 
sons, where a principal has clothed his agent, general or special, 
with all the external indicia of property, and third persons have 
dealt with the agent, supposing him to be the sole principal, 
without any knowledge that the property involved belonged to 
another person: Story on Agency, sees. 93, 227, 448. Mr. 
Justice Buller said, in Htxherbert v. Mather, 1 T. B. 16: '' It is 
the common question every day at Guildhall, where one of two 
innocent persons must suffer by the fraud or negligence of a 
third, which of the two gave credit." 

Our court has frequently applied this doctrine in behalf of 
creditors who have extended credit upon faith of the ordinary 
induna of ownership, accompanying personal property held by 
one to whom the real owner has committed the possession in 
such way as to enable him to impose upon strangers ignorant 
of the true title: Archer v. McFaU^ Bice L. 77; Ford v. Aiken, 1 
Strobh. L. 90; S. C, 4 Bich. L. 183; Burgess v. Chandler, Id. 

228 Oabmichabl v. Buck. [S. Carolina, 

176. Thieae ware all oases of possession acquired by a son-in- 
law from a father-in-law, but they were instances of the appli- 
cation of the general principles we have mentioned; for in 
neither of them was there in fact a gift, although the appear- 
ance of one had imposed upon creditors. Innocent purchasers 
are not entitied to less fayor, and are not less favored by the 
law, than creditors. 

There is no disposition to trespass upon the domain of equity 
courts by taking cognisance of a plea of purchaser for valuable 
consideration without notice, and making that plea at law avail- 
able against a legal titie when it would not be so held in equity; 
but we only apply an acknowledged principle, which is so 
deeply founded in justice as to have become a maxim, and which 
is indispensable to the security of many ordinary transactions: 
Boot V. French, 13 Wend. 571 [28 Am. Dec. 482]. " Courts of 
law,'' says Mr. Story in his treatise on agency, sec. 91, " also, 
as far as they may, in regard to personal property, where no 
technical formalities are necessary to a transfer, now act upon 
the same enlightened principles of justice. Thus where a man 
without objection suffered his own goods to be sold by an officer 
at public auction to satisfy an execution against a third person, 
in whose possession they were at the time, it was held, in favor 
of the purchaser at the sale, that his conduct might well au- 
thorize the conclusion that he had assented to the sale, or had 
ceased to be the owner: " Pickard v. Sears, 6 Ad. & El. 474. 
The court there thought that it should have been left to the 
jury to say whether the plaintiff had not ceased to be the owner. 
Lord Denman saying: " The rule of law is clear that where one 
by his words or conduct willfully causes another to believe the 
existence of a certain state of things, and induces him to act on 
that belief so as to alter his own previous position, the former 
is concluded from averring against the latter a different state of 
things as existing at the same time." This looks like bringing 
only intentional impositions under the rule, but our cases in 
relation to creditors, before cited, have expressly ruled that it 
is immaterial whether the deceitful appearance was held out by 
the true owner designedly or unintentionally. That the creditor 
or purchaser was actually deceived is not of itself sufficient; 
there must have been on the part of the true owner some act or 
conduct calculated to lead to deception, but that act or conduct 
may be only negligence, and not fraud— only imprudence, and 
not evil design. 

The question between two persons entitied to equal favor, 

Jao. 1857.] Cabmichael v. Buck. 229 

of whom one most suffer^ is. Who gave to the faithless agent 
that credit which enabled him to effect an imposition t If the 
tine owner did so, then the fraud or folly of his agent would 
become his fraud, if he should shift the burden of loss from 
himself to an innocent purchaser. 

NoWy in the case which is before us, the plaintiff, true owner 
of the timber, is prima facie entitled to recover the value of it 
from the defendant, who purchased from Huggins, the rafts- 
man; but the plaintiff's right is not so conclusive that it may 
not be rebutted. If it should appear that the defendant or his 
agent knew that Huggins was only an agent, then the defend- 
ant will be bound to abide the consequences of the agentTs hav- 
ing exceeded his authority, unless he can show that the true 
owner held Huggins out to the world as one having authority to 
sell the raft. If it should appear that neither the defendant nor 
his agent knew that Huggins was an agent, but that they dealt 
inth him supposing him to be the true owner, then it will be 
necessary for the defendant to go further, and show some act or 
conduct of the plaintiff which led to the defendant's loss; as, 
that the plaintiff put Huggins into possession of the raft, with 
the usual indicia of ownership, so as to enable him to hold 
out ap}>eaiances which would have misled a prudent purchaser. 
Whether the possession of such a raft by two white men, who 
said that they had cut the timber and owned it, was sufficient 
evidence of ownership, the jury will consider, with reference to 
evidence that may be given of the usual course of the business 
of cutting, rafting, and selling timber on the Fee Dee. 

It will not do to say that if the jury should regard Huggins 
as entitled to sell, then no owner of timber can trust it to a car- 
rier without incurring the risk of loss. One obvious answer is. 
Let the owner employ an honest or a responsible carrier; and 
another is. Let him take care to show 1^ some suitable means 
that the carrier is neither the owner nor an agent to sell. 

Nor will it do to imagine cases in which the doctrine that may 
protect the purchaser in this case may be carried to an alarming 
extent in derogation of the rights of true owners; as, for in- 
stance, cases of negroes hired for a year, of horses hired from 
liveiy-stables, and of articles lent. As to negroes, mere 
possession is, upon safe grounds of distinction, held to be 
ordinarily much feebler evidence of ownership than it is of other 
chattels: Maples v. Maples^ Bice Eq. 300; and as to horses and 
other articles hired or lent, surroimding circumstances will de- 
termine between the true owner and an innocent purchase! 

^30 Oabmichael v. Buck. [S. Guoliiiak 

~^bich has hy any nnfaimess or impradence faroiight upon him- 
' Helf loss; and if both are equally free from all fault, the ultimate 
' question will be, Who gave credit to the actual wrong-doer t 
. Even where the third person who did the wrong was known to 
'be only an agent, it is ''a general rule when a commodity is 
-merit in such a way, and to such a place, as to exhibit an appar- 
«nt purpose of sale, the principal will be bound, and the pur- 
chaser will be safe, although the agent may haye acted wrong- 
fully, and against his orders or duly, if the purchaser has no 
knowledge thereof:" Stoiy on Agency, sees. M, 78, note; Pidb- 
ming v. Bush, 16 East, 48. Stronger is the case, wheie the com- 
modity is sent as above, and the person in possession is so held 
out as to appear the true owner. 

Without intending, then, to indicate any opinion, and really 
without haying formed any, on the questions which, as we haye 
said, should haye been submitted to the juxy, we direct a new 

Motion granted. 

WmTnsB and Muhbo, JJ., concurred. 

OlTsALL, J., dissented. 

PvnaHABxa or Pbb80nal Pbofkbtt Taxsb No Bsma TrrLs thav am 
Vendob had, m a general mle: WUUams ▼. Merie^ 25 Am. Deo. 004, and 
note; 8aliu$ v. EkereU^ 32 Id. 541, and note; McMakon v. Skan^ 51 Id. 001| 
Agnew ▼. Jcknaon^ 62 Id. 303; and eee Rogtr$ ▼. iJtite, 64 Id. aOOi In oaae 
of conditional sales, see SairgeiU ▼. Meteatf^ 66 Id. 368; Bwrbamk ▼. Crooier^ 
Id. 470; and notes thereto. Warranty of title, when implied: See ScoU v. 
Hix, 62 Id. 458, and note considering the qnestion; Lctng ▼. HieHngboUcm^ 
64 Id. lia 

Mabxet OyiRT DOSS NOT Exist ut Ambrioa: Note to WUUaau ▼. Merle^ 
25 Am. Dec. 600; Wortk^ ▼. Johuon, 52 Id. 399; Bogen ▼. Hwie, 54 Id. 80a 

Pubchasbb WHur Obtains Good Titls, NorwiTHSTANDiNe Tairs Own- 
KB*s Claiu: See the question folly discossed in the note to WUUams ▼. 
JUeHe, 25 Am. Dec. 605; note to Saltua v. BvereU^ 32 Id. 554; Hqjfman v. 
NMe, 39 Id. 711, and note; McMahon v. Sloan^ 51 Id. 601; Jemungs v. Oage^ 
56 Id. 476; and see particalarly when a bona Jide porchaser from an agent 
Introsted with possession of the goods by the owner is protected: Note to 
WUliatns ▼. MtrU^ 25 Id. 615; and see the principal case cited on this point 
in ReynMs v. White, 13 S. C. 14. 

PsiNCiPAL WHXN BouND BT AcTS or SPECIAL AoiNT: See Purdeg 7. 
Morriaon, 63 Am. Deo. 424, and note ooUeoting prior oases; also StoMaek n 
ftecMl, 62 Id. 648. 

May, 1867.] Ktu v. Llvbxss & R Oa 281 

Kyle v. Laubenb Railboad Gompaht. 

[10 BKnuBMOali Law, ML] 

GomraozmG Lim, when he reoeiTM goods sad reoeipte lor theoi, " to be 
delivwed on pr o eentntion of the reoeipt ** at a ^lecified point beyond his 
fimito of trade as a carrier; and delivery to a connecting line does not 
free him from obligation to deUver them at the ^lecified plaoe. 

IimuBST ON NcT Valus of Oorov Lost bet CAumTBE mnr vm Allowbd 
from the date of notice of loes and demand of payment of the oanier. 

GABsm la NOT EHTrruiD to Faotob*b Gouibbionb as ABATmniT ov 
Damaob, where cotton consigned to the fMtor at a partionlsr piaoeis kwt 
by the carrier on the road. 

DAMAasB for loss of cotton hy the defendant. Thxee Bidig npon 
like fBM^ts against the defendant weze tried and decided together. 
The undertaking of the defendant in the receipts giyen l^ it for 
the cotton shipped by the phuntifEs was .that it ' ' should be deUr- 
ered on presentation of the receipts at Charleston.'* The defend- 
ant's road did not extend beyond Newbeny^ bot the cars contain- 
ing the cotton were transferred at the end of the defendant's road 
to the Orsenville and (Colombia Bailroad Company, and were 
taken on to Charleston, but the cotton was lost after deliyeiy to 
the latter company. Both companies had ofBces and collected 
their freight in Charleston, each company haTing its respectiye 
freight The juxy was directed that the deliTciy of the cotton 
to the GreeuTille and Columbia Bailroad Company did not dis- 
chaige the defendant, and that the oonsidenition of freight on 
the defendant's road was enough to prerent the contract from 
being considered nudum pactum^ and that from the value of the 
cotton in Charleston was to be deducted the entire freight from 
Laurens, the point of shipment, to Charleston, and no deduc- 
tion should be made for factor's commissions on the sale, the 
goods being consigned to a factor for sale, and that interest 
from the time of notice of the loes given to and payment de- 
manded from the defendant should be aUowed the plaintiflb. 
The verdicts being for the plaintiffs, the defendant appealed, and 
now moves for a new trial. The other facts are stated in the 

SvUioan^ iot the appellant. 
Simpson^ contra. 


By Court, O'Nbau., J. The three first grounds really make 
the same question, Was the defendant liable for the cotton lost 
after it reached the Qieenville and Columbia railroad, and before it 

232 Etlb v. Laubens & R. Ga [S. Carolina^ 

reabhed its destinatioD, Charleston f That the lAurens Bailroad 
Ck>mpan7 was liable is, I think, plain from the receipts, whereby 
it plainly undertook for the delivery of the cotton in Charles* 
ton. The cases were in this respect like the case of Lipford y. 
Charlotte and South Carolina B. B. Co., 7 Bioh. L. 409. In that 
case the company undertook for the delivery of the cotton in 
Charleston; and was only saved from liability for a loss, arising 
from the delay in reaching Charleston, by showing that the 
South Carolina railroad was broken up by a freshet, tb^ act 
of God. 

The case of Muachamp v. Lancaster etc. B, B. Co., 2 Bailw. Cas, 
607, states, I think, the true rule. There a box was delivered 
to the company, directed to a place beyond the terminus of the 
company's railway; and it was held by Bolfe, B., to be liable 
for a loss, although the box reached Preston, the terminus, and 
there another took it up to transport it to its destination. 

The rule was laid down in that case, by Bolfe, that where a 
carrier takes a parcel directed to a particular place, and does 
not by particular agreement limit his responsibility to a part, it 
is prima facie evidence of an undertaking to cany to the place, 
though beyond the limits of his trade as a carrier; and there- 
fore, that he is liable for a loss occurring even beyond his limit. 
This ruling was approved on appeal by Lord Abinger, C. B., 
Oumey and Bolfe, barons. 

The same principle is recognized by the cases cited by the de* 
fendant in the brief. Indeed, the supreme court of New York, 
1^ Nelson, C. J., in the case of St. John v. Van Santvoord, 25 
Wend. 660, held that the carrier was liable for a box directed 
to J. Fetrie, Little Falls, Herkimer, and which the defendants 
received to be transported, on their tow-boats on the Hudson, 
which only ran to Albany, and the box reached Albany safely, 
but was lost beyond. The chief justice said perhaps a usage of 
trade might limit their responsibility. The case was carried to- 
the court of errors, and it was there held that it was shown 
that the usage of trade was to deliver at Albany to the canal 
line to transport to the place of destination, and this limited 
the liability of the defendants to their terminus. 

The same ruling is repeated in Farmers^ and Mechanic^ Bank 
T. Champlain T. Co., 18 Yt. 140. It would be enough to say. 
Concede all which those cases ruled, and still the defendant can- 
not be helped; for no usage of trade was proved that the Laurens 
Bailroad Company should deliver to the Ghreenville and Colum- 
bia Bailroad Company at Newbeny. It was true, the freight 

May, 1867.] Ktlb t;. Laubsns R R Oa 288 

list was there tamed over, but the cotton went on in the Laa« 
zens zailroad cars without bulk being broken. This looked more 
like the Greenyille and Colombia Bailzoad Oompany stood in the 
character of employee to the Laurens Baiboad Oompany than 
as liable to the consignor. But in all the cases decided in 
New Tork, Yermonty and Oonnectiout» there was a mere direc- 
tion of the parcel to a point beyond the carrier^s trade. Here 
flie carrier espedaUy undertakes, on the presentation of the 
receipts gi^en for the cotton, that it should be deUvered in 
Gharleston. This, it seems to me, ends all pretense which might 
arise under an implied undertaking from a mere direction. As 
to the notion of nudum pactum, the report sufficiently answers it. 

Two questions arise out of the fourth ground: 1. Was the 
company liable for interest on the net tbIuc of the cottonf 2. 
Was the company entitled to deduct conunissions on the value 
of the cotton, as if sold? 

Interest was, I think, properly allowed. The cotton lost was 
a cash article at the place of deliveiy; its value was estimated 
on a cash sale, so that the plaintiffs' loss was, respectively, as 
of so much cash; hence interest must be charged against the 
caxxier by whom the loss was occasioned. I regard a carrier in 
the light of an insurer against evezything except the act of God 
and the enemies of the countiy. In 2 Phillips on Ins. 750, 761, 
we are told the practice is to allow interest against the insurers 
on the loss from the time of abandonment, or perhaps, more 
properly speaking, from notice of the abandonment, and demand 
of payment, or after the expiration limited by the policy for pay- 
ment to be made. The interest here was computed from the 
time of demand of payment. 

The answer to the second question cannot, I think, be well 
doubted after it is properly considered. The carrier in ordinary 
cases has no right to commissions. If, as in the case of Bridge 
V. Austin, 4 Mass. 115, he undertook to transport and sell, and 
for so doing, then, he was to have five per cent commissions, it 
may well be in the case of a loss he would have the right to 
deduct the oomniissions; for they were a part of his compen- 
sation for his service touching the article lost. But in these 
cases the caiiier had nothing to do but to deliver in Charleston. 
If a &ctor might there have boIZ, it was a matter in which the 
Laurens Bailroad Company had no interest whatever. 

To illustrate the matter still further, suppose the cotton had 
teached the Charleston depot, and the carrier had refused to 
deliver, and trover had been brought, what would have been the 

S34 Bask v. Knott& [S. Carolina, 

plaintifb' damagest The valae of the artiole, dednoting Hie 
freighty and adding interest on the net value. In Bnoh a case, 
eommissionB conld not have been talked about How, in any 
ease, can any deduction be made for that which was to be sub- 
sequent to Qxe carrier^s discharge of liability, by deliyering the 
parcel f The authorities are, I think, dear against such allow- 
ance. Sedgwick on Damages, c. 18, p. 869, tells us that the rule 
whereby the damages are fixed is a rule of law. At pages 870, 
871, he tells us the rule as to carriers is the value of the article 
lost, or not delivered at the place of destination, deducting his 
freight. The same is substantially the ruUng in CHUingham t. 
Demaey, 12 Serg. k B. 188. 
The motions are dismissed. 

Wnrnnai, Gxovn, and Muxbo, JJ., oononnced. 

Motions dismissed* 


UPON CozriTSOTiNO Likb: See note to Fikihburg etc i?. B, v. HemmOf 09 Am. 
Deo. 430, and other oases in this series there collected. The prinoipsi case is 
cited in Wheeler v. San Fra/neiKO ete. H. R., 31 GaL (^ to the point that the 
receipt of goods destined beyond the terminus of the particnlar railroad, and 
accepting the carriage throngh, and giving a through ticket or oiieok, imports 
ma undertaking to carry through, and that such oontraot is binding on the 

Bahk t;. Enotib. 

[10 BtasAMtmcnfu Law, 648.] 

fivATun or Ldotationb dobs not Commbnob to Buk ur Favoa of 
QvABAHTOB VFOH OoHTiNniKG OuARAiiTy until there is a defimlt la 
payment by the principal, and a full and complete cause of action has 
accrued against the guarantor. 


Dbtauut in payment by principal, where he is not prejudiced by the 
want of it; he stands upon the same footing as any other surety, and his 
liability is not detennined upon the principles applicable to negotiable 


VAULT IN m Patxbnt, notwithstanding the suit be against the guar* 
antor only. 

AssuMHUT upon a written goaranty 1^ the defendant 
three others, which goarantj was acoepted October 38, 1817» 
and guaranteed the payment of all drafts or notes made or to 

May, 1868.] Bank v. KHona 

he made bj OIoTon k DmB, and by its temui dadand to be a 
•contiDmng guaranty, to be reroked only I7 written notice, with 
liability tiiexennder limited to Are thonaand doUaze. OloTen 
A DaTis deCanlted in the payment of moxe than fi^e thonaand 
^ollara, ao goaianteed, on October 1, 186S. The writ waa lodged 
Febmaiy 9, 1854, and the atatate of limitationa waa pleaded, 
ihe declaration setting ont the gnazanty, but alleging no new 
promise* The court below oyezroled the plea of tixe atatate of 
limitations, and instructed the jury that in finding for the plaii^ 
ii£b, interest on the sum should be allowed from the time of da* 
ianlt of Gloyera k Daris, October 1, 1862. The Tcrdict waa for 
ihe plaintifb for fiye thonaand dollars, and interest according to 
ihe instmctions of the court. The defendant appealed, and re- 
newed hia motion for a nonsuit, and also mored for a new triaL 
The other &cts are stated in the opinion. 

Amafcetf , for the appellant. 
Ba^ffMy oonlna* 

By CSourt, Ifmno, J. The ground for a nonsuit ia that the 
plaintifb* cause of action waa barred hj the atatnte of limita- 

To determine this, it is neceeaazy to look: 1. To the charactei 
of the instrument sued on; 2. To the time when the plaintifly 
cause of action accrued. 

The instrument sued on is declared upon its face to be a con- 
tinuing guaranty, and that it is to remain of force till reyoked 
by written notice to the president or cashier of said bank. 

It appears from the cizouit report that the guaranty waa ac- 
cepted hj the plaintifb on the twenty-eighth of October, 1847, 
from which time, and upon the f^th of which, Glovera & 
Daria procured from the plaintiffs extensiye accommodations; 
all of which ap{>ears to haye been promptly met hy them up to 
the period of their failure in 1862, when they failed to pay 
the notes, which the plaintiffs are now seeking to recoyer under 
the defendant's guaranty. Ohitty, in his treatise on contracts, 
p. 436, defines a contract of guaranty to be " a collateral en* 
gagement to answer for the debt, default, or miscarriage of 
another, as distinguished from an original agreement for the 
pariy'a own act. It ia therefore of the essence of this contract 
that there must be some one liable as principal, and accordingly, 
when one party agrees to become responsible for another, the 
former incurs no obligation as surety if no yalid claim oyer 
arises against the principal; whilst on the other hand, the lia- 

Bakk v. Enottsl [S. Oarol]ii% 

biliiy of the snreiy upon the claim, which is good as against th^ 
principal, ceases so soon as snch claim is extinguished." 

It is argued that the statute of limitations commenced to ruA 
from the time the guaranty was accepted by the plaintiflb. 

But it is obvious that such a position can only be sustained 
by confounding the collateral undertaking of a surety for the 
debt, or default of his principal, with an original undertak- 
ing for his own act; for until the plaintifGB were damnified by 
GloYcrs & Davis's fidlure to meet their engagements at maturity, 
it is dear that the plaintiffs had no right of action, even as againsi 
the principals, much less against the defendant as their surety-^ 
so that in no point of view can the defense of the statute be sus- 
tained; for no principle is better established than this: that the 
statute of limitations does not begin to operate from the time 
when a contract is actually made, unless a full and complete 
cause of action instantly accrue thereon; and again: '' In case 
of a contract of indemnity, the statute does not apply until the 
lapse of four years from the actual damnification/' 

The groimd for a new trial charges error in instructing the 
jury that the bank was not bound to notify the defendant of 
the default in payment by Glovers & Davis. 

The position here assumed is, that the want of notice of de- 
fault in payment by the principal is a virtual abandonment of 
recourse against the surety, upon the principle applicable to 
negotiable instruments. 

But it is clear that the analogy does not hold good, for in no 
sense of the term is a guaranty such as the one in question a 
negotiable instrument; on the contrary, the legal relation that 
is created between the principal and the maker by this species of 
contract is that of principal and surety; so that the guarantor 
stands upon the footing of any other surety, and is therefore 
only entitled to notice when he maybe prejucUced by the want of 
of it. See 8 Kent's Com. 166, where, in treating of guaranties, 
the rule is thus stated: ** The rule is not so strict as in the case 
of piere n^otiable paper, and the neglect to give notice must 
have produced some loss or prejudice to the guarantor." See 
also Ch. Bills, 824; Story on Bills, 802, 872; Dmglasa v. Bey- 
nolda, 7 Pet 118; Bank v. Hamnumd, 1 Bich. L. 281. 

The motions for a nonsuit and for a new trial are therefora 

O'Nball, Wabdiaw, and Wethibs, JJ., conmineci. 
Motions dismissed. 

Nov. 1857.] Landbum v. Hatohsb. S37 


In oonturaing gnaimoties, Me Lane ▼. Ltmllkm, 37 Am. Deo. 709; Lews t. 
BeehoUh, 58 Id. 659; note to Beebe ▼. DwUey, 59 Id. 946; in gnnnntiee gen- 
enlly, mo fFAiCon ▼. Mean, 45 Id. 233; MathoM v. CMmmm, 51 Id. 124; 
Beebe t. i>iKU^, 50 Id. 841, and the notet thereto; note to Memtrd r. Seud- 
iter. 56 Id. 619. 

liAliDBUM V. Ha^ 


[11 BlOHABMOM'B LaW, M.] 

Lavdb Aoqotbbd arxb MAKura ov Will do not Pabs TnBDT* nndet 
the South Cnrolina eot of 1791, nnleee there has been a anbaeqnent re- 
pnbUoation of the will, bat they deecend to the heir at law. 

LasDS Bid off at Shkbiff's Sals abb Dbvisablb jom Dsbobhdiblb ab 
Bbal Estats, and the sheriff's deed shoold be made to the heir at law 
of the parcbaser in case of his death prior to the completion of the par- 
ohase, and not to the legatee or devisee under a will made before the 
porehase; nor does the payment of the parohaae money by the testator's 
exeentor change the rule. 

Heir at Law is Entitled to have Land Paid for out of Bequeathed 
PsBSOR AL Profertt, when the testator, after making his wUl, bids oil 
. the land at sheriff's sale, and dies before paying for the same. 

Defevdaict in EzBounoN is NOT Estopped from Dentiho Shbriff'8 
Deed, where it is made to one who was neither a purohaser at the sals^ 
nor his assignee, devisee, or heir. 

Tbespass to try the title to certain lands bid off by Christian 
Breithaupt at a sheriff's sale under an execution against the 
defendant. Breithaupt had made his will prior to the sale, and 
died before paying for the land, and without republishing his 
wilL By his will the residue of his estate was directed to be 
sold and the proceeds distributed among certain relatives in 
Oermany. Breithaupt's executor paid for the land, and directed 
the sheriff to conyey it to the plaintiff, according to instruc* 
tions from these residuaxy legatees, and the deed was accord- 
ingly made by the sheriff. The court granted a nonsuit, on the 
ground that Breithaupt's interest in the land was an equitable 
one, and having been acquired after the making of the will, did 
not pass under it, but went to the heir at law, and the executor 
had no power over the land. The plaintiff appealed, and moved 
io set aside the nonsuit and for a new trial. 

BavakeU^ for the appellant. 

OarroU, contra. 

By Court, WHrnnot, J. This court is of opinion the non* 
•ait was properly ordered by the circuit judge. The views 

'288 Lanbrum v. Uatcheb. [S. Carolina^ 

Boggested in the report are such as meet with approval, and in 
delivering the judgment of this court I shall onlj attempt briefly 
to enforce and sustain them by authority. By our act of 1791 » 
lands acquired after making a will do not pass thereby", unless 
there has been a subsequent republication: 7 Stats. 163. It ia 
conceded, therefore, that if a deed had been executed by the 
sheriff to Christian Breithaupt, neither his executor nor devisee 
could have maintained this action. The act of assembly, 1791, 
embraced both lands and personal estate, though by the act of 
assembly, 1808, this restriction as to personally was removed, 
and upon this branch of the case the inquiry is as to which class 
the interest of Breithaupt in these lands belonged. It is cor* 
rectly denominated by the circuit judge an equitable interest, 
Mr. Stoxy, in his Equity Jurisprudence, section 1212, says this 
belongs to a class of cases embracing what is commonly called 
the equitable conversion of property. By this is meant an implied 
or equitable change of property from real to personal, or from 
personal to real, so that each is considered transferable, transmis- 
sible, and descendible, according to its new character. Thus, says 
the author in continuation, where a contract is made for the sjile 
of land, the vendor is in equity immediately deemed a trustee for 
the vendee of the real estate, and the vendee is deemed a trustee 
for the vendor of the purchase money. Under such circum- 
stances, the vendee is treated as the owner of the land, and it is 
devisable and descendible as his real estate. 

The equitable interest, therefore, in question, if it had been 
acquired before the will was made, would have passed by the 
devise, but being acquired after, and there being no republica- 
tion, descended to the heir. The general rule, as stated in Ch. 
Gont. 808, is that the heir or devisee, and not the personal rep- 
resentative, must sue on a contract relating to freehold prop- 
erty. In such a contract as this, a specific performance must 
have been asked by the heir at law. 

It is supposed that the payment of a portion of the purchase 
money by the executor may make a difference, but it is not per- 
ceived. If the purchaser of real estate dies without having paid 
the purchase money, his heir at law or devisee of the land pur- 
chased, as the case may be, will be entitled to have the land 
paid for by the administrator or executor: 2 Williams on Exec- 
utors, 1499; Broome v. Monck, 10 Yes. 697. In this case^ 
therefore, Ohristian Breithaupt having died intestate as to the 
land, the heir at law to whom it descended was entitled to have 
it discharged of the debt, aAd to have a title deed from the 


Nov. 1857.] Lakdrum v. Hatcheb. 289 

Bhexifll But it is insisted that the sheriff has actually made a 
deed to the land in question^ and the defendant cannot gainsay 
or dispute this title. Bat whose title may he not dispute, and 
why not? The purchaser or any one claiming under him» and 
leoiuse such person is regarded as hsTing the title of the de- 
fendant himself » and that he may not dispute, however imper- 

It has never been held that he may not resist a stranger. 
This plaintiff ia neither the purchaser from, nor assignee, 
devisee, or heir at law of, Breithaupt. He has a sheriff's deed; 
but by what authority? It is said the sheriff was the agent of 
the defendant, but is this correct for any such purpose? The 
sheriff may be by law and for certain purposes the agent of 
both plaintiff and defendant. That is an agency well defined, 
and as to this transaction the act of the legislature must be 
pursued. The sheriff ia authorized to convey to the purciiaser, 
and looking to the object of the law, our courts have recognized 
conveyances to his assignee, devisee, or heir. 

The alleged authority from the executor cannot mend the 
matter, as this has been shown to be a case of partial intes- 
tacy. It is not analogous to the case of McElmurrdy v. Ardis, ft 
Strobh. L. 212. In that case there was a will before the interest 
accrued, and whilst the judge delivering the opinion held that 
generally the titles should be executed to the party having the 
legal estate, adds, but if made to the devisee, the land was sub- 
ject to a trust confided to the executor for the payment of debts. 
The motion to set aside the nonsuit and to grant a new trial ia 

(yNsAU., WiBDLAW, WntHBBS^ OLovia* and Mmmo, JJ., con* 

Motion dismissed. ^_^^ * 

AfTsa-AOQinuED Lakds, WHs r ium and wmor Pass bt Wills See 
Wjffme*9 LuMt ▼. FTyniie, 58 Am. Deo. 80, sad note ooUeeting prior omm} 
Bown ▼. Johnmm^ 61 Id. 110. A oodicil repnbluhei m will to m to pMi to 
tlie rendoazy deviaee kndi pnrohaaed by the testator between Ibe timee of 
making the will and the oodicil: Drayton ▼. Rote^ 64 Id. 731. 

Bquttabli EsTAxn ars Qotzbnid bt Sams Ritlbi as Lioal Estates* 
AS BasARDs Pabsdig or Avtbb-aoquibbd Lands bt Will: Mtador v. 
tfori6y, 36 Am. Deo. 432. 

Sbbbuv'b I>bbd ib Oobclvsivb Evidbbob of the right of possession ia 
tliB paiehassr agaiaal the defendant in elBOtttloo, sod aU «i^<"**»«g nndev 
him after /odgmentx Halt v. JSTeiv*^ 27 Abl Deo. 288L 

240 Lbqbb v. Dotix [S. Carolina^ 

Lbqieb v. Dotub. 

[U BiOBABDMni^i Law, 100.] 

(BUli Of Lavd bt SiuumrF umdeb Lktt Madb Foub Years Fuvixhiblt 


ov HIS Tbbm or OmoB, even thoagh it is sold under m levy nasde by 
himself while in offioe; snoh m pnichsse is not oontrsry to the letter nor 
reason of the statntes pewed to prevent s aheriff from buying directly or 
indirectly st lus own isle. 


pRBSUMBD, in the absence of proof to the contrary. 
Dbolarations of Pbbson IN PosssssioN or Land abb Aomissiblb to show 
that his possesstcm was not sdverse; and the want of an adverse charac- 
ter to his possession which prevents acquisition of title by the statute of 
limitations u sufficient to rebut the presumption of a conveyance which 
the lapse of twenty years' possession might raise. 


Vaub against Him and all the world, except such creditors and pur- 
chasers as are protected by the registry acts, notwithstanding the debtor 
remained in possession thereafter for twenty years; and when the deed 
is recorded, it is not liable to be defeated for previous neglect of any pre- 
scribed time for registering by rights subsequently scquired. 

TiTLB TO Land Sold undxb Exxoittion Rbmains in Bzxoution Dbfxnd- 
ANT until delivery of conveyance to the purchaser; and the conTcyance 
when delivered does not relate back to the time of the sale; the interest 
acquired by the purchaser is only such an equitable interest as exists 
under every contract to buy. 

Pabol Contbaots to But Land, whbthbb Wbittbn ob Unwbittbn, 
abb not Eicbbaobd within the South Oarolina registry acts. 


Takbs Effbot as Notiob from the date of registration, and does not 
relate back to the day of delivery, but gives to tiie deed priority over all 
conveyances made subsequent to the registration. 
Pbbvious Convbyangb Rbgistxbbd in Intbbval bbtwbbn Exboution 
Salb and Conybtangb by Shbbiff supersedes the sheriff's deed; even 
though it was not registered within the time prescribed by the registiy 

Tbbspass to try the title to land claimed liy the plaintiff under 
St sheriff's deed made and delirered in 1860, upon a sale made in 
1848, on an execution against Daniel Doyle, the &ther of the de- 
fendant. The defendant claimed by title from his father by two 
deeds made by one Ingram, sheriff, one to Peter 0. OoggeshaU, 
for a portion of the land in dispute, dated in 1829, upon an 
execution sale made in 1826, in pursuance of a levy made in 
1822 by one Bacot, the former sheriff. The deed to Coggeshall 
not recorded until in 1849, between the date of the sale by 

Nov. 1857.] Imoxe v. Dotlk S41 

Che Bheriff to ihe pbdniiff and the AeBwery of the deed to her. 
The other sheriff's deed, oonveying the xemaiiider of the land 
in dispute, was made in 1882 to said Baoot, upon an execution 
eale made to him in 1826, in porsnanoe of a le^ made by him 
while sheriff in 1822 at the same time as the other levy. This 
latter deed was recorded within six months from its deliyeiy, as 
Tequired by the registry acts. Notwithstanding theee sales, 
Daniel Doyle, the father of the defendant, continued to reside 
on the lands in dispute until his death, some time after the plain* 
tiff obtained her deed. The defendant also resided on and cnl« 
tiTated this same land with his &ther during all the time from 
1822 up to the present time, and as &r as the obeerration of others 
went, the &ther and son seemed to treat the land as common 
property. On the trial, the plaintiff, for the purpose of showing 
that Daniel, the &ther, had reacquired title as against both pur- 
chasers from Ingram, by adverse possession, was allowed to 
give in evidence dedarations of his in favor of his own title, 
and also certain declarations of the defendant on three occa- 
sions, once saying that the land was his father^s; again that the 
line of a railroad divided his father's from a neighbor's land; 
and a third time, after a quarrel with his father, that he had 
cloaked that property long enough. It also appeared that at 
various times the father was greatly embarrassed 1^ executions. 
On the part of the defendant, many declarations of the father 
were introduced denying title or claim of title to the land in 
himself, and also it was shown that in 1888 a case was pending 
against the father, by the heirs at law of Bacot, involving the 
■portion of the property bought by Bacot at the sheriff's sale, 
and that this case was compromised and a paper executed be- 
tween Bacot's administrator and Doyle, the father, whereby the 
latter agreed to pay on or before a day in 1841 a sum certain 
for the land, and the administrator agreed to convey the same 
to the defendant and his brother, the father stipulating at the 
same time that he had no title to the land, except what was 
expected to be derived from this agreement. Some payments 
were made by the defendant on ttus agreement. It was also 
shown that in 1882 Coggeahall conveyed the portion which he 
had purchased at the sheriff's sale to one Buffin, and the latter 
conveyed the same to the defendant and lus two brothers the 
same year, but neither of the deeds was recorded. The question 
of adverse possession was submitted to the jury, and the verdict 
was for the defendant The plaintiff appealed, and now moves 
for a new trial. 

Daa Vox.. LZX— 16 

242 liBQua t;. Dotle. [S, Garolixuib^ 

Spain and Norwood^ for the appellant. 
Mosea and Inglia, contra. 

By Court, Wabdlaw, J. This court approves the cucoit de-^ 
eisions, which have been brought under review here. 

The sale by Ingram, sheriff, under a levy made four years* 
before by Bacot, his predecessor in office, is sustained by the 
authority of the case of Gasaaway v. HaU^ 3 Hill (S. C.)» 289. 

The purchase by Bacot after the expiration of his term of office- 
from Sheriff Ingram of land sold under a levy which Bacot,. 
when sheriff, had made, was not contrary to the letter or the 
reason of any statute which has been passed in this state to pre- 
vent a sheriff from buying directly or indirectly at his own sale: 
See Act of 1839, 11 Stats. 38, sec. 59; Act of 1823, 6 Stats. 213; 
Act of 1791, 7 Stats. 263, sec. 8. The regular turning over of 
the execution by Bacot to his successor, and the regular sale by 
Ingram at a proper time and place, will, in the absence of proof 
to the contrary, be presumed. 

The declarations of Daniel Doyle, made during his possession 
and before controversy, were admissible to show the character of 
his possession, upon the question whether it was adverse. As to 
actual fraud, which has been imputed, the verdict affords patent 
contradiction; but it is not unimportant to remark that the old 
executions against Daniel Doyle, which existed in 1826, may all, 
in the absence of any opposing evidence, be presumed to have 
been satisfied before the plaintiff obtained her judgment against 
him in 1849, and that no execution against him between these old 
ones and the plaintiff's was shown. Oonceming the presump- 
tion of a conveyance from Coggeshall, or some person claiming 
under Coggeshall, to Daniel Doyle, which the lapse of twenty 
years, between the date of the conveyance to Coggeshall and 
the time of its registration, has been thought to raise, it may be 
remarked that the same want of adverse character in Daniel 
Doyle's possession, which prevented his acquisition of a title by 
the statute of limitations, also rebutted presumptions of title in 
him. The plaintiff claims under him, and can have no rights 
superior to those he had. 

The main question in the case is that which relates to the 
registration of the deed of conveyance from Sheriff Ingram to 
Coggeshall, and this question affects only a portion of iiie land 
sued for. 

Bacot, sheriff, levied in 1822; under this levy Ingram, sheriff, 
sold to Coggeshall in 1826; and under this sale a sheriff's title 
was executed and delivered to Coggeshall in 1829. 

Nov. 1867.1 LmB u Don& 243 

The plaintiff obtained ber judgment in 1849; under it Sberifl 
Bn^ginSy after levy, sold to tbe plaintiff November, 18d9, and 
vJLecQted to ber a sberiff's title in February, 1850. Between tbe 
sale to tbe plaintiff and tbe execution of tbe conyejance to ber, 
to wit, December 17, 1849, tbe old conrejance to Coggesball 
was registered. If tbat conveyance is valid, it sbows a title out 
of tbe plaintiff, altbougb subsequent conveyances under it bave 
never been registered; and tbe plaintiff contends tbat if all otber 
objections to tbis old conveyance sball prove unavailing, tbe 
registry acts will make it inefficient against ber, a subsequent 
innocent purcbaser witbout notice. 

Tbe questions tbus presented under tbese acts are almost iden- 
tical witb tbose tbat were considered in tbe case of Steel v. Man- 
seU, 6 Bicb. L. 437, wbicb was decided in tbe court of errors, 
and wbicb we will suppose tbe readers of tbe remarks now to be 
subjoined bave carefully examined. Tbe distinctions between 
tbat case and tbis are: 1. Tbat tbere tbe older deed was regis- 
tered witbin four years from its date; bere after twenty yeai's 
from its date; 2. Tbat tbere tbe registration of tbe older deed 
preceded tbe sberiff's sale under wbicb tbe junior deed was made, 
tbougb it followed tbe judgment under wbicb that sale was made; 
but bere tbe registration of tbe older deed was subsequent to tbe 
sberiff's sale, at wbicb tbe plaintiff purcbased, altbougb it pre*- 
ceded the execation of tbe conveyance to ber. 

Tbe first distinction we dismiss by simply suggesting, in ad- 
dition to what has been before said about fraud and presump- 
tions, tbe inquiry whether Daniel Doyle could, under tbe cir- 
cumstances that existed, bave resisted tbe deed to Coggesball 
as obsolete, fraudulent, or otherwise void. If he could not, 
that deed, even without registration, was valid against him and 
all tbe world, except such creditors and purchasers as are pro- 
tected by the registry acts; and when registered, was not after- 
wards liable to be defeated for previous neglect of any prescribed 
time by rights subsequently acquired by a purchaser. 

Tbe other distinction may seem at first to be more important 
It is asked, Shall a purchaser at a sheriff's sale be defrauded by 
an old conveyance, of which he bad no means of notice at the 
time of bis purchase? And it is said if the contract to buy had 
been made with a private individual, a defect of title subsequently 
discovered might have been urged against the completion of the 
contract; but under the rule of caveat emptor, applicable to 
sheriff's sales, the purchaser at such a sale is obliged to pay bis 
bid, and should be saved from the unjust defeat of his expecta« 
tions by matter supervening his contract. 

SM Lbgsr t;. DoTLK [S. Caroliiui^ 

It might be answered that where the pnxchaeer at a sheriff's 
tele is the plaintiff in execution to whom the proceeds of sale 
are payable, and the defendant in execution has contributed to the 
perpetuation of an actual fraud, by concealment of papers or other 
means, the purchaser would not be bound to give the defendant the 
benefit of the fraud by completing the bargain, which was made 
by hisbid: SeeMn^y. Dent, SBich. L. 207; HerhemoniY. Sharp, 
2 McCord, 264; Ibwlea r. Turner, 8 HiU (S. 0.), 182. But here 
actual fraud has not been found, and the bargain of the pur- 
chaser having been completed, she claims to have acquired a 
paramount title. By the sale, as it is called, she acquired no 
legal title, but only such equitable interest as exists under 
eyery contract to buy. The subsequent conveyance made to her 
by the sheriff would, if she had gone into possession before it, 
have shielded her from responsibility for mesne profits by rela* 
tion Ixick to the sale: Kingman v. Olaver, 8 Bich. L. 86 [45 Am. 
Dec. 756]. For such would be the effect of any contract to buy 
under which possession was held, where there was a right to daim 
immediate execution of the contract, and execution followed. 
But up to the very time when a conveyance is delivered by the 
sheriff to one who has purchased land at a sheriff's sale, the title, 
which the defendant in execution had at the sale, remains in 
such defendant, the power to convey which the law vests in the 
sheriff being yet unexecuted: Bank v. 8. C. Man, Co., 8 Strobh. 
192 [49 Am. Dec. 640]. The registry acts embrace deeds and 
conveyances, not parol contracts to buy, written or unwritten; 
and a sheriff's conveyance is subject to the provisions of those 
acts in like manner as a conveyance from a private individual: 
Massey v. Thampsion, 2 Nott A M. 105. If an honest conveyance, 
made by a debtor before judgment against him, should be regis- 
tered at some time within six months from its delivery, in vain 
would a subsequent purchaser oppose to it his rights as purchaser 
without notice, even although he had purchased at sheriff's sale 
under a judgment obtained after its delivery, and the convey- 
ance to him, as well as the sale, had preceded its registration. 
The registration in such case would, under the act of 1785, re- 
late back to the day of delivery, because it was made within the 
prescribed time. The registnttion of the old deed now in quea- 
tion, not having been made within the prescribed time, can have 
no relation back; but taking effect only at the time it was made, 
it then became notice, and gives to the deed priority over all 
conveyances subsequently made. 
If Oxe plaintiff had paid her bid, by giving a receipt to the 

Nov. 1857.] Lbger v. Dotlb. 24S 

sheriff or otherwise, and had taken the conveyance from him on 
the day of sale, she could not have been hart by the fegistration 
within six months thereafter, of any conveyance not executed 
within the six months next preceding, provided the conveyance 
to herself had been duly registered within six months. To her 
own tardiness, rather than to the slowly exerted diligence of 
somebody claiming under the conyeyance to Coggeshall, is to be 
ascribed the priority which that couTeyance has obtained. The 
law contemplates the sale by the sheriff, the payment of the 
purchase money, and the conveyance to the purchaser as one 
continuous transaction; interruption and deUy cause embar- 
rassment and inegularity, but they are so frequent that various 
special provisions have been made to meet them. This case, 
however, illustrates forcibly the danger to a purchaser which 
attends them. The same result might possibly have happened 
if the delay had been only for an hour; so any subsequent con- 
veyance might possibly be defeated by a prior one registered 
within six months from its execution and within an hour inter- 
Tening between a search in the r^iister's office and the execu- 
tion of the subsequent one— or, in any case, where the order of 
precedence is fixed in conformity with the order of registration, 
a very short interval of time might be decisive of conflicting 
rights; but in every case the risk is increased in proportion as 
the time is extended. Here the plaintiff delayed only six weekis; 
but if that comparatively short interval between the sheriff's 
sale and his conveyance shall be disregarded, and the plaintiff 
be protected against occurrences of the mean time, what shall 
be the limit of the like indulgence in other cases ? The legisla- 
tore has allowed sheriflEs and their successors, for an indefinite 
time, to complete the contracts made at their sales. If we do not 
invariably look to the conveyance, and that only, as the trans- 
fer of title, without regard to the time of the contract, we will 
in effect enact that the conveyance is only formal, and that all 
its important uses may be served before it is made. The motion 
IB dismissed. 

(yNsAJLL, WixHKBS, Whxtnbe, Ghx>VBB, and MusBO, J J. 9 oon« 

Hotion dismissed. ^^_^ 


Show Chabaotek or his Possbssion: See the notes to Marqf v. SUmt^ M 
Am. Dea 741; and Nelson v. Ivtraon^ 60 Id. 449. Dedarationa as eYidenoe, 
genenlly: See iVinteji ▼. JfJicAett, 63 Id. 258^ and other oaata ooQec^ 

246 McOoT V. Lemon. [S. Carolina, 

Uhbioobdkd Doed, Duly Exioqtbd avd Dcijtbbbi>, Passes Titui: 
PkUtpa V. Oreoi, 13 Am. Deo. 124; bat if not raoorded within the time 
preeoribed by statute, is void as to oreditore: Harvey v. AUxaindtr^ 10 Id. 
619. If a purchaser fails to record his deed until after a jnd^ient has been 
recovered against his grantor, but does so before sale under the Judgment^ 
lus deed takes preoedence of the sheriff's deed: Daim v. OiPiM5|f, 56 Id. 106| 
and note; but see Bhepherd v. BvrkhaUer^ 68 Id. 623. 

MoGoY V. Lemon. 

[11 BlOBABiMOv'i Law, 166.] 

Casks of Mathxm, dobs kot Exist in South Oarolina, however snob 
power may have existed at the common law. 
Damaobs abb to bb Assessbb bt Jury undbk Authobitt of Covbt, and 
not by the court independently of the jury, in all cases sounding in 
damages. In all instances of vindictive damages, or where there is no 
rule of law regulating the assessment of damages, the judgment of the 
Jury, and not the opinion of the court, is to govern. 

Tbbspabb for assault and battery and mayhem. The foots 
are stated in the opinion. 

Spain and J, S, G. Richardson, for the appellant. 
Blanding, contra. 

By Court, Whttneb, J. The merits of this case, as presented 
on circuit, are in no way involved by the present motion. 

The battery of which the plaintiff complained had occasioned 
the loss of an eye, and the jury returned a verdict for thirty 
dollars. This appeal rests on the refusal of the judge on cir- 
cuit to increase the damages, after verdict, on motion of plain- 
tiff's counsel, super visum vulneris. 

This court has been urged by a veiy learned and ingenious 
argument to administer a remedy never, so far as we are in- 
formed, adopted by the courts in this country. Not a single 
case has been found in any book of American reports in sup- 
port of the present motion, notwithstanding the great research 
displayed by counsel. Neither has there been, for a period of 
more than a century, any recognition of the rule by any ad- 
judged case in England to which we have been able to procure 
access. It is true, modem text-writers, in brief paragraphs, 
allude to this peculiarity as appertaining to the action of may- 
hem; and Mr. Christian, in a note, 8 Bla. Com. 121, states the 
point fully, that " a remarkable properly peculiar to the action 
for a mayhem is deemed to exist, yiz., that the court in whioh 

Ifay, 1856.] McOoT t;. Lemon. 247 

ibe action is brought hare a discretionary power to increase the 
-damages, if thej think the jniy at the trial have not been soffi* 
^ciently liberal to the plaintiff; but this mnst be done super 
viinim vtUneria, and upon proof that it is the same wound con* 
ceming which eyidence was given to the jury/' The same prin- 
idple is stated in Bull. N. P. 21, and Steph. N. P. 225, each 
denying authority from the same sources. 

Whatever reason may have existed heretofore to justify this 
peculiarity, in cases sounding in damages, we would be wholly 
at fault to deduce a rule at all consistent with modem practice. 
In the last case at Lent assizes, in 1742, and referred to by 
Christian, Brown v. Seymour, 1 Wils. 5, the application was 
refused, though the judge said there was no doubt of the rule. 
In the case of Cook v. Beal, 1 Baym. 176, 1 think in 1696, the 
<;ourt resolved: 1. " That if a wound be apparent, though not a 
mayhem, an eye injured, not out, but wound visible; "2. ** For 
loss of nose, though not a mayhem;" or 3. "If a grievous 
wound " — the court may increase the damages. In SmaUpiece v. 
Bockenham, referred to in Buller, it seems witnesses and jury- 
men were examined, who all said that no evidence was given that 
any blow had been inflicted upon the eye, or that the party had 
lost an eye by the battery; and for this reason the court would 
not increase the damages, " for new evidence ought not to be 
given, for this is a censure on the first verdict and a correction 
of it." 

The question before the court is one purely of damages; and 
by what standard could a judge remodel the verdict ? Under the 
Mosaic law there was a rule: "Eye for eye, tooth for tooth, 
hand for hand, foot for foot; " but under our present dispensa- 
tion no such law of retaliation prevails. The legitimate object 
of the proceedings in our courts of justice is at once to make 
reparation to the injured party, and to deter others from the 
like. Wo have no standard value of an eye; and hence, 
according to the cases in awarding damages, there must be con- 
sideration of the nature, quality, and degree of the wrong done. 
For centuries the wit of jurists has been taxed to settle the 
province of judges and juries; and though not yet clearly 
<lefined in every conceivable case, much progress has been made. 
Damages, strictly speaking, are a compensation given by the 
jury for an injury or wrong sustained by the complaining party 
before action brought: 1 Co. Lit. 257. The quantum of dam- 
ages, being in most oases intimately blended with questions of 
laety must have been generally left with the jury: Sedgwick on 

248 McCoT V. Lemon. [S. Carolina^ 

BamageBy 21; but, 'says the same author, ttie limits of tihei> 
power were not at first as clearly defined as they have become in 
later days. In this course of development, we find, in 1 
BoUe's Abr., p. 703, it said: ''The jury are chancellors, and 
they can gire such damages as the case requires in equity.'^ 
Whilst again it is said: " The old books are full of cases where» 
on judgment by default, and even on demurrer, the court 
themseWes fix the amount of damages, and the remains of this 
is seen in the power exercised by the English courts in cases of 

Other facts appear in our judicial histoiy illustrating the 
point under consideration, as we trace the gradual establish- 
ment of our practice as settled at this day. 

In the earlier cases the courts refused to interfere in granting 
new trials on account of excessiye damages: Ibumshend t. 
Hughes, 2 Mod. 150; Ash v. Ash, Comb. 857; or for smallness 
of damages: Eayvoard v. Newton, 2 Stra. 940; though in each 
a different rule obtained, sparingly exercised: Ducher T.Wood, 
1 T. R. 277; PleydeU v. Earl of Dorchester, 7 Id. 529; DoneUy v. 
Baker, Barnes, 154; 2 Tidd's Pr. 916. 

The constitutions adopted by the different states of this Union^ 
as well as the whole current of legislation and adjudication, 
demonstrate the great jealousy of the American people on the 
subject of juxy trial. So universally regarded as a great palla* 
dium in England and America, we may well be cautious of any 
innovation, though the same sentiment should equally guard 
the improvement which time and experience have ingrafted on 
our judicial proceedings. Our reverence for the common law 
must have its just limit, and we may well hesitate to adopt any^ 
principle not recognized for the past hundred years. The trial 
by juxy has taken the place of other forms once in favor, and 
the judgment of a panel of twelve men has been incorporated 
as an indispensable element in the judicial administration of the* 

Our notions may well be pronounced inveterate as to thi» 
mode of securing rights and redressing wrongs. 

At this day we may lay it down as settled that in all cases 
Bounding in damages, these damages are to be assessed by the 
jury under th/*> authority of the court, and not by the court in- 
dependently of *he juiy; and in all cases of vindictive damages,^ 
the amount mur^ depend on the sound discretion of the jury. 
Hence, according to a series of adjudged cases, where there is no- 
rule of law regulating the assessment of damages, and the 

Kay, 1856.] McCoy v. Lemon. 24» 

amount does not depend on computation, the judgment of the 
juiy, and not the opinion of the court, is to govern. The prin* 
ciple is familiar, and scarcely needs a reference: Warster t. Canai 
Bridge, 16 Pick. 541; Slotie y. Kelland, 1 Wash. C. C. 142; Ear^ 
vey Y. Huggins, 2 Bail. L. 252; Park t. Hopkins, Id. 408. 

This rule in no way conflicts with the practice of again sub- 
mitting a case to the judgment of another jury in extreme cases, 
when the verdict is extravagant or trifling. 

The question therefore recurs in such a case as the present. 
What legal rule exists whereby to measure the damages and 
dispense with the judgment and sound discretion of a juxyt 
However conclusive the argument of counsel on the subject of 
the transfer of certain powers exercised and distributed by the 
courts of England to the law judge in South Carolina, and how- 
ever a court organized as ours and charged with the administra- 
tion of the common law might have been impressed a century 
ago by the doctrines and authorities now urged and relied upon, 
yet, looking as we must to the long sleep into which this practice, 
as best not very clearly defined, has fallen in the mother country, 
and still more to the fact that it has never been transplanted in 
our soil, and is now wholly incongruous with our usages and 
institutions, this court has not seen its way to the conclusion 
urged. Other and better rules of practice, efficient and satLsfac- 
tory, have been adopted, in committing that class of cases 
sounding in damages to the jury under the supervision of the 
court, and relying on the proper corrective against mistake, igno- 
rance, prejudice, and caprice, by granting new trials when the 
damages are excessive or nominal. I may add that it would he 
hazardous, inconvenient, and to some extent subversive of our 
judical machinery, to attempt this retrograde, and perhaps 
would justly subject this court to a charge of judicial usurpation* 

The motion to increase the damages is refused. 

O'NbaUi, Wabdiaw, Wuhkbs, Glovbb, and Mdmbo, JJ., con- 

Motion refused. 

Amouxt or DAMAon is DuGBsnoKAKT WITH JuBT where there is no oer*. 
tein oriterion to r^gnlate the verdict: Biakop v. Mayer etc qf Macon, 50 Anu 

Allowahoi ov Exkicplabt Damages: See Austin ▼. WUson, 60 Amu. 
Deo. 76G, and note, where the question is discussed at length; sIbo Rov)t ▼• 
Mom$, 117 Id. 600, and note considering the sahject of the peennisry droaiOF^ 
of tbo psities as affMsting the msasare of damages. 






Wallaob t;. Ganaday. 

[4 SlIBXD^ 864.] 

aiNOB in Bafely preserving materialB delivered to them to be ground; 
bat their liability i« not as extensive as is an innkeeper's or oommnn 
carrier's. If in the exercise of such care as from the natare of the case 
is thought necessary for its preservation the grist is lost, without the 
imprudence, negligence, or fault of the miller, he will not be liable. This 
class of bailment is known as loecUio operiafaciendi, 
Hilleb's Liabilitt fob G&ain Dkliterbd to Him to bb Oboitkd Gok- 
TiNUBS until it is so ground and returned to its owner. If the owner's 
servant is present while the grain is being ground, assisting In the work, 
and places a sack of the grist in a place from which it is stolen, the miUer 
is not relieved from his liability, as the servant while so acting was not tiie 
agent of his master, but of the miller. 

Appxal from Obion county. The opinion states the &ot8. 

Cochran and Enloe, for the plaintiff in error. 
Davis, for the defendant in error. 

By Court, Habbis, J. The defendant in error brought this 
8uit before a justice of the peace to recoTer the Talue of a sack 
of flour, which was lost at the mill of the plaintiff in error. The 
justice gaye judgment for the plaintiff; the defendant appealed 
to the circuit court, where the plaintiff again recovered. A new 
trial was refused, and the defendant prosecutes a writ of error 
to this court. 

The bill of exceptions shows that the plaintiff introduced as a 
witness E. Eirk, who testified that " he was at defendant's mill 
when the plaintiff's negro boy came to the mill with a load of 

% April, 1857.] Wallace u Canadat. 251 

grain; the negro brought the bags of grain into the mill; that a 
bag of the plaintiff's wheat » containing about two and one half 
bushels, was ground and the flour put up, and the negro set the 
bag aside with the bags of witness, apart from the other bags in 
the mill. When the boy got ready to leave, said bag of flour 
was gone, and when witness left, it had not been found; that he 
saw no want of care and attention in relation to said bag of flour 
on the part of the miller." The value of the wheat and bag 
was proved, and that defendant was a public miller, who ground 
lor toll. 

The court charged the jury '' that if the plaintiff's wheat was 
<*arried to the defendant's mill to be ground, the defendant was 
bound to return it, and woidd be liable to pay for it if it was lost 
by theft, unless such theft was committed by overpowering force; 
that a miller is bound to use extraordinary diligence in preserv- 
ing the grain sent to his mill from loss." It is insisted for the 
plaintiff in error that this charge is erroneous; that a public 
miller is only bound to use ordinary diligence. 

The general rule is, that where the bailment was for the mu- 
tual benefit of both parties, then the bailee is only bound to 
ordinary diligence — "such as a person of ordinary care and 
prudence takes of his own concerns." But it by no means fol- 
lows that in every case where the bailment is for the mutual 
benefit of both parties the bailee is only bound to ordinary care. 
There are several exceptions to this rule. In the case of inn- 
keepers and common carriers, it is manifest that the bailment is 
for the mutual benefit of both parties; but a very different prin- 
ciple prevails as to their liabilities. "Public policy imposes 
upon an innkeeper a very severe liability." "The prevailing 
authorities make him an insurer of the property committed to 
his care against everything but the act of God, or the public 
enemy, or the neglect or fraud of the owner of the property:" 
See 1 Parsons on Cont. 624; 2 Kent's Com. 459; Mason v. 
Thompson, 9 Pick. 280 [20 Am. Dec. 471]; Richmond v. Smith, 
6 Barn. & Cress. 9; Piper v. Manny^ 21 Wend. 282; OrinneU v. 
Cook, 3 Hill (N. T.), 485 [88 Am. Dec. 663]; Manning v. Welh, 
9 Humph. 746. This rule is equally stringent as to common 
carriers: See 1 Parsons on Cont. 634; 2 Kent's Com. 464. 

This policy is founded on the principle of public utility, to 
which all private considerations must yield. Travelers are 
bound to rely almost implicitly on the good faith of innkeepers. 
Most of the commerce of the country, from necessity, is carried 
to market by common caxriers. And it would be almost impos* 

252 Wallace v. Canaday. [Term. 

able, in any given case, for the ovner of property oonunitted to 
their care to make out proof of fraud or negligence in the land- 
lord or common carrier. The law, therefore, from motivee of 
public policy, presumes against them, unless they can show that 
the injury resulted from the act of God, or the public enemy. 

Were it not for this rule, innkeepers and common carriers 
might contriTe, by means not to be detected, to commit breaches 
of trust, or be robbed of the goods committed to their care, in 
order to share the spoil: See 2 Kent's Com. 460. This stringent 
rule was applied by his Jionor the circuit judge to the case be- 
fore us. And it is difficult to perceire, upon reason and sound 
policy, why it is not correct. Almost the entire breadstufis con* 
sumed in this county are manufactured by public millers, and 
the owners of grain are as much bound to rely implicity on their 
good faith as are the owners of goods committed to the care of 
innkeepers and common carriers. The small amount inyolvocl 
in this case makes it a matter of but little consequence, but ^Ua 
principle involved is one of practical importance. 

Not only are our breadstuff's manufactured by public millers, 
but many of our smaller planters have their entire cotton crops 
prepared for market at public gins, which must, as we think, be 
governed by the same principles. The difficulty is in determin* 
ing to what class of bailments the case belongs, and the degree 
of care required of public millers. We think, however, that 
the authorities place the case within a class where the rule is a 
little less stringent than that adopted by his honor. 

Under the head of locaiio operia fadendij is embraced tliat 
class of bailments ** where mechanics are employed to make up 
materials furnished, or to alter or repair a specific thing." It is 
true, it is said that ** the contract is one of mutual benefit, aud 
only ordinary care is required." But it is also said that ** this 
care may vary much in different cases," according to the *' na- 
ture of the thing and the circumstances:" 1 Parsons on Gout. 
603, 610. " The obligations of workmen are, to do the work in 
a proper manner, to employ the materials furnished in the right 
way, and not only to guard against all ordinary haseards, but ta 
use their best endeavors to protect the thing delivered to them 
against all peril or injury." But '' if it perishes in their hands, 
without their fault, then the owner loses the property:" Id. 611. 
" If the loss occur through theft or robbery, or the injury re- 
sult from violence, the bailee is only answerable when kis 
imprudence or negligence caused or facilitated the injariom 
act:" Id. 606. 

April, 1857.] Wallace v. Canadat. 26S 

While we admit that reason and pnblie policj mnild well 
warrant the holding of pnblio millers to the same stringent 
liability that innkeepers and common carriers are held to» yet 
we think that the authorities place them in the class with " me- 
chanics who are employed to make np materials famished;'' 
but we also think that from the " nature" of the bailment and 
the *' drcomstances/' they should be held to the greatest degree 
<d care and diligence. 

Bat if, in the exercise of such care as is, from the nature of the 
case, thought necessary to prevent the grain or the flour from 
loss by destruction, thef t, or being canied off through mistake, 
it should be lost by ineyitable casualty, *' without the imprudence, 
negligence, or fault " of the miller, then we think he should not 
be liable. 

It resulta, therefore, that in that part of his honoris charge 
where he instructed the jury that if the plaintiff's grain ** was 
lost by theft," the defendant would be liable to pay for it, '' unless 
such theft was committed by oyerpowering force/' he erred. 
The defendant is bound to use his best endeaTors for ita preser- 
iration; but he would not be liable, eren in case of theft, unless 
he was guilly of some imprudence, negligence, or fault. And 
this should haye been submitted to the jury. For this error the 
judgment will be reversed, and the cause remanded for another 
trial. It iB also assumed in argument that the defendant is not 
liable because the slare of the plaintiff " set the bag of floor 
aside, apart from the other grain in the mill; " that he was the 
agent of the plaintiff, who thereby became possessed of his 
flour, and after that the defendant was not responsible for it. 

To the correctness of this argument we cannot assent. It is 
the duty of a public miller to reoeiTe the grain brought to his 
mill, to deposit it in some place of safely, to grind it according 
to its turn, and to sack the meal or flour so as to have it in 
proper condition to cany away, and then to eee that it is deliv- 
ered in each case to the owner or his agent when he desires to 
remove it from the mill. 

It is not the duly of the owner to aid in any part of this buBi*» 
ness; and if his slave, by whom he sent the grain to the mill, 
does so aid, he acts as the agent of the miller, and not the owner. 

If the miller deliver the flour to the slave of the owner when 
he is ready to leave, and he carries it out of the mill, then he 
has lost his custody of and control over it, and he is discharged 
from liability, though the slave should afterwards be guilty of a 
breach of confidence, and convert it to his own use. 

264 Pritchabd v. Wallace. [Teniw 

Bat the mere remoying of the floar by the slave from on» 
part of the mill to another, for the purpose of putting it out of 
the vrskj of other grain, could have no such effect. 

Whbu Bailbs has Right to Bsoeitb Ooicfxhbation vob his SsRvioxSt. 
he 18 liable for a foUnre to exercise ordinary care: Smith ▼. Naahma A L. R» 
B,, 59 Am. Deo. 307. A disonseioii of this queation ia eatered into in nota 
to LticheUs V. Townaend, 49 Id. 73& 


[4 SniD, 406.] 

BssuiADfO Trust Abibes in Favob ow Wifs whoee hnaband indncea her 
to allow him to eell separate land of hera and to nae the money thns de- 
rived to purchase other land with, where he takea the title in his own 
name. A oonrt of equity will enforce the tmat after hia death agpunst 
hia heirs. Such a trust is not within any of the provisions of the statute 
of frauds, and may be established by paroL 

Appsal by complainants from a dismissal of their bill. Tho 
opinion states the facts. 

M. and H. Brown, for the complainants. 

Bullock and Scurlock, and L. if. Jones, for the defendants. 

By Oourt, Oabuthebs, J. This bill is filed to set up a result* 
ing trust in a tract of one thousand seven hundred acres of land 
in Decatur county, upon this state of facts: The complainant, 
Polly Pritchard, was the daughter of Samuel Smith, of Mont- 
gomery county, and, as one of his heirs and distributees, became 
entitled to a tract of land of some three hundred acres in that 
county, several slaves, and some money. She first married Francis 
Warden, who died, leaving several children, the other complain- 
ants in this bill. In the year 1844 or 1845 she intermarried with 
James Wallace, who died in August, 1862; and in 1863 she mar- 
ried her present husband, William Pritchard. In 1850 Wallaoe 
purchased the tract of land in question from Igleheart, at four 
thousand dollars, two down and the other in three equal annual 
payments. The title to the land was taken in his own name, and 
he settled on it soon after the purchase, and there died, leaving 
his family in possession. Becently a proceeding was instituted 
for a partition of the land among defendants as the collateral 
heirs, after assigning dower to the widow. Wallace settled the 
children of his wife, without title, upon various parts of the 
tract. He left no children at his death, and his widow became 

April, 1857.] Pritohard v. Wallace. 255 

entitled to his whole personal estate and dower in the land. It 
appears that his slaves and other property personal amounted 
to some twelve or fifteen thousand dollars in value. Some part 
of the consideration of the land yet remains to be paid. 

But these facts do not affect the questions raised by this bill. 
It is filed to enjoin the partition proceedings, and to have de- 
dazed her title to the whole tract of land, upon the ground that 
the money with which the cash payment was made was derived 
from the sale of her tract of land in Montgomery for one thousand 
one hundred dollars, and the remaining nine hundred dollars 
from her father's estate; and that she has paid, or is bound to pay, 
the other two thousand dollars out of her own property — that is, 
the property to which she is entitled by law, as the widow of said 
Wallace. The bill charges that there was an express agreement 
and positive assurance on the part of her husband that the pro- 
ceeds of her three hundred acres of land should be invested in 
lands for her and her children, and that this was the condition 
on which she agreed to sell it It is also charged that the same 
agreement extended to all moneys derived from her father's 
estate in her right, and that the nine hundred dollars came from 
that source. As to the amount of this last item, the proof is 
very unsatisfactory and conflicting. The executor of Smith 
■ays he paid him only two hundred dollars on that account; 
but declarations of Wallace are proved going to show that 
one thousand nine hundred dollars, if not the whole of the first 
or cash payment, was made out of the proceeds of her land and 
other moneys received from her father's estate. But in the 
view we take of the case, it is not at all material how that was 
as to the amount. Whatever he may have received on that ac- 
count became his own by virtue of his marital rights, and no 
trust could be raised against him, no matter what disposition he 
may have made of it. How that would be in a case where the 
wife had taken steps to secure her equity to a settlement out of 
it, or was prevented from doing so by a promise and agreement 
on the part of the husband to invest it for her benefit, need not 
now be determined, as no such case is presented in this record. 
As to that part of the case, then, we consider there is no ques- 
tion. There was no act on her part to be performed to enable 
him to recover that part of her estate; he had a right to receive 
it simply as husband, and to deal with it as his own, without 
her sanction or co-operation, subject alone to an active move- 
ment on her part in a court of chancery to declare the '' wife's 
equity " in her favor. This not having been done, and no charge 

256 Pbitchabd v. Wallace. [TenzL 

that it was pxerented by any promise of his, or anytliixig done on 
his part, she cannot now oomplain, or ask any benefit on account 
of it. 

But a veiy different case is made ont in relation to the pro- 
oeeds of her bind. The proof is entirely satisfactoiy that she 
was induced to concur in the sale and conyeyance of her land 
in Montgomeiy county upon a distinct agreement on his part 
that the amount receiyed for it should beinyested in other lands 
in West Tennessee for her benefit. The argument used by him 
to her was that much more, and as good if not better, land 
could be bought with the money, and in the end be greatly to 
the adyantage of herself and children. There was not, per- 
haps, any clear and distinct proof by any one present at the 
time such an agreement was made between them, but the dec- 
larations and acts of both establish the fact with equal oondu- 
eiyeness. He seemed to haye no concealment on the subject, 
but during the whole period, from the date of the transaction 
down to his death, always declared the facts to any one who 
talked with him in relation to the land sold and purchased. He 
took her oyer to see the land before he purchased it; and ob- 
tained her consent and approbation to the purchase before it 
was made. Her children were settled on parts of the land with- 
out contract or consideration, and arrangements made for theix 
permanent use of it, as the facts indicated, with declarations as 
to his purposes and intentions to that effect. And there is good 
reason to belieye that if he had liyed he would haye carried out 
his intentions in legal form; or that if he had made a wiU, he 
would not haye been tmmindf ul of his engagements with his 
wife in the matter. But all that is speculation now, and the 
parties must stand upon their legal rights as they arise out of 
the facts established. 

There can be no doubt, from the eyidence, that before the com- 
plainant did consent to the sale of her land, her husband agreed 
and distinctly promised her to inyest the proceeds for her benefit 
and that of her children after her in this tract of land, and that the 
proceeds were so inyested. The probability is strong, from the 
facts, that this was the only condition on which she would or did 
agree to the sale, and that this assurance induced her to sign the 
conyeyance of her land. What, then, is there in the way of the 
enforcement of this trust? The statute of frauds is not, because 
such a trust is good without writing, when clearly established 
by proof. It is in the nature a resulting trust, which may always 
be set up by parol. It is based upon a sufficient consideration. 
It is not " a contract for the sale of lands," which is required 

April, 18570 Pbitchabd v. Wallagx. 267 

by the statate of fmods to be in writing, bat it is the asBamp* 
lion of a trost for the benefit of another, of a character which 
need not be in writing to make it obligatory upon the trustee^ 
and will be enforced on account of the consideration. If it were 
▼olontary, the law would not enforce it. 

Our own cases fully establish this doctrine: Chester y. Chreer, 
5 Humph. 34; Powell v. Powell, 9 Id. 477; Exparie Tarborough^ 
1 Swan, 202. In this last case the court say: " There can be no 
question in the case before us as to the wife's right, had there 
been any agreement or understanding between her and her hus- 
band that compensation should be made, or that he should be 
regarded as her debtor for the proceeds of her proportion of the 
land sold and conveyed by them." Without such an agreement, 
the receipt of the price of her land would not make him her 
debtor, or fasten any trust upon him. This is the clear distinc- 
tion in all the cases, and it would be useless to accumulate au- 
thorities upon the subject at this day, when it is so well settled 
that the wife may deal with her husband in relation to her 
separate property, and hold him to the performance of his agree- 
snonts with her upon that consideration. The one thousand one 
hundred dollars, then, received for her land, never became the 
money of the husband, but was the property of the wife as much 
as the land from which it was derived; and if he appropriated 
it by agreement to the purchase of land or other property, and 
look the titie to himself, she could either make him her debtor 
for the amount, or assert a resulting trust in the property in 
which it was invested. In what does it differ from the ordinary 
•cose of a resulting trust, where the titie to property is made to 
one person and the consideration paid at the time by another? 
The money was hers by virtue of his agreement, and the titie 
was made to him. She is in equity the owner, and he held the 
legal titie in trust for her. His heirs occupy the same position. 

The result is, that the decree of the chancellor dismissing the 
bill must be reversed, and the right of complainant PoUy de- 
clared to that proportion of the land which the one thousand 
one hundred dollars bears to four thousand dollars, the whole 
oonsideiation. The titie wiU be vested in her for life, and 
remainder to her children. This must be laid off to her as well 
as dower in the remainder of the tract. The remainder in the 
dower, as well as the balance of the whole tract, of course vesta 
in the defendants as heirs at law of James Wallace. 

The cause will be lamanded for the eieoation of the decree to 
1)6 now made. 

▲m. Daa Vob UCK— IT 

258 Whbatlst V, Harris. [Tenik 

RiBUiAiHO TBU0T8 ariung where one penon pays the pnrofaMO prioe tnd 
the title » taken in the name of another: See Smith y. Strahan^ 87 Am. Deo. 
622; Irwin v. IvetB, 63 Id. 420, and cases in notes thereto. 

RiBULTiKO Trustb MAT BM Ebtabushkd bt Parol: Sea Mune oaaes, an4 
notes. The prinoii>al oase is cited to this point in CUek v. CVtdfc, 1 Heisk. 
612, where the court say: "Complainant became the owner of the land by 
way of resulting trust; and although the deed on its face was absolnte. the 
fact that John Click held the title merely as trustee is susceptible of proof 
by parol** In Pillow v. Thomcu^ 1 Bazt. 120, ihe court say that while the 
rules of law require the most satisfactory and convincing evidence to estal^ 
lish a resulting trust, it is now well settled that such a trust may be evtab- 
lished upon the admissions of the trustee sought to be charged as such. The 
principal case is cited in Jackwn v. RuUedge^ 3 Lea, 629, whete the court say: 
"A married woman may, with separate means, or by the proceeds of property 
in which she has an interest, purchase property, personal or real, from her 
husband or a third person, and have it settled to her separate use," 

Wheatley v. Habbib. 

[4 SVUD, 468.] 

OwNXB OF Doo HAS SuoH PBOPBRTT IN HiM as wiU entitle him to maiBtila 

an action against any one for killing or injuring him. 

Tbespass for killing a dog. The opinion states the foots. 

Bailey and Posten, for the plaintiff in error. 

VcUeniine^ TreadweU^ and Sullitxm, for the defendant in error. 

By Court, MoEikket, J. This was an action of trespass, com* 
menced before a justice of Shelby, for shooting a dog. On an 
appeal to the circuit court, the plaintiff recovered judgment for 
twenty-fiye dollars; to reverse which the case is brought here. 

Upon the question whether the owner of a dog has such a 
property as will entitle him to maintain an action for killing or 
injuring the dog, there can be no doubt. The ancient author- 
ities are clear upon this point. In Cro. Eli2. 125, it is laid down 
that the law takes notice of a greyhound, mastiff, dog, spaniel^ 
and tumbler, and trover will lie for them. See also Oro. Jac. 
44. A man hath a property in a mastiff; and where a mastiff 
falls on another dog, the owner of the latter dog cannot justify 
the killing the mastiff, unless there was no other way to save 
his dog, as that he could not take off the mastiff, etc. : 1 Saund^ 
84; 3 Salk. 139. The owner of a dog is bound to muzzle him 
if he be mischievous, but not otherwise; and if a man doth keep 
a dog that useth to bite cattle, etc., if, after notice given to hlni 
of it, or his knowing the dog is mischievous, the creature shull 

April, 1857.] Wheatlet v. Harris. 259 

do any hm-t, the master shall answer for it: Cro. Car. 254, 487; 
Stia. 1264. By statute 10 Geo. m., c. 18, to steal a dog was 
made subject to penal punishment by fine or imprisonment, at 
the direction of the justices; and for the second offense, in addi- 
tion, the dog-stealer was to be whipped. 

The foregoing extracts from the ancient books — ^without no- 
ticing the more modem authorities — are sufficiently explicit, and 
show that the law upon the point of the master's property in a dog 
is well settled. 

Judgment affirmed. 

Propbbtt IV IiiraBioB ANDtAifl. — ^In regird to the ownenhip of anlmils, 
there it aa important distinction between tnoh m are domiUBf or domettio aai* 
mala» and rach aa are /arm notens, or are of a wild diapoaition. The former 
elaaa indodee horaee, cattle, aheep, oar barn-yard poultry, and the Uke, and 
over them, of ooarae, a man may have aa absolute a dominion and property 
as over any other nseful and valuable chatteL With regptfd to animals /arm 
mUmrm, the case is different. In such animals a man can have only a special, 
limited, or qualified property, which continues only so long as they are under 
his dominion and control; such as where he has housed or confined them so 
that they cannot escape, or where he has educated or tamed them. If they 
escape from him or regain their natural liberty, his property in them instantly 
ceases, unless they have animum revertendi^ which is to be known by their 
usual habit of returning whence they have escaped: 2 Kent's Com. 348; 2 
BUi. Ck>m. 390; Co. Lib. 8 a; Case qf Swana^ 7 Bep. 17 b; Broom's Legal 
Maxims, 395; Brooke's Abr., Propertie, 37; 7 Co. 17 b; 1 Ch. Pr. 87; 18 Vhi. 
Abr. 207. This is well-established law, and will be found recognised or 
announced in all the cases hereinbelow cited. Law-writers and judicial tribu- 
nals have at varioos times made ownership of and property in inferior ani- 
mals and animals /arm naturm a subject of discussion, and we will below 
present some of their conclusions* 

Pbopxbtt IK Doos. — ^Dogs have at all times been held to be the subject of 
property or ownership, but of a very limited and qualified kind. Blackstone 
says that they, being of no intrinsic value, but being kept only through the 
whim or caprice of their owner, caimot bo the subject of larceny; that their 
taking amounts ouly to a trespass, which, however, can be redressed by a civil 
action: 2 Bla. Com. 303. Again he says, regarding these animals, while die* 
cossing property which may be the subject of larceny: **Aa to those animals 
which do not serve for food, and which therefore the law holds to have no in- 
trinsic value, as dog^ of all sorts and other creatures kept for whim and pleas- 
ure, though a man may have a base property therein, and maintain a civil 
action for the loss of them, yet they are not of such estimation as that the 
crime of stealing them amounts to larceny:" 4 Bla. Com. 235. The law as 
thus laid down by Blackstone, that a civil action may be maintained in a 
proper case for the loss or destruction of a dog, appears to be unquestioned 
in England and America, although, as is said in Blair v. Forehand, 100 Mass. 
141, dogs have nearly always been held *' to be entitled to less legal regard and 
protection than more harmless and useful domestic animals." That a dog is A 
species of prtiperty, for an injury to which an action at law may be sustained* 
Parhar v. i/tss, 62 Am. Dec 776; Woolfy, Chalker, 31 Conn. 121; Sprap 
. Anmarman, 66 IlL 309; U/ilien v. Oromack^ 109 Mass. 273; JfoMmv. Ktd' 

260 Wheatlet v. Harris. [TeniL 

ing, 1 Ld. Baym. &XL An action of titupaw or trover may be soBtained for 
an injury to or the oonvenlon of a dog: Cha$nben y. Warlkauae, S Salk. 
140; Wright y. BatiueoU, 1 Sannd. 84. In an action for the killing of a dog, 
It is not neooMary to show that he was of any pecuniary value, as dogs belong 
to that class of domiciled animalB which the law recognizes as objects of prop- 
erty, and consequently will protect from invasion by civil action on the part 
of their owner: Dodtcn v. Mock^ 32 Am. Dec 677. The native of the property 
and the ownership which one may have in a dog Is more elaborately discussed 
in the cases upon the question whether larceny can be committed by stealing 
one of those animals. This question arises under statutes making it larceny to 
steal the '* goods and chattels " or the ''personal property " of another, and It 
will readily be seen that the question whether one may have a valuable prop- 
erty in a dog becomes very material in a prosecution of a peraon for laroeny 
in stealing one. This question is discussed, and the cases upon this point ars 
collected, in the note to 8taU v. Home*, 57 Am. Dec. 277* 

MiscELLANBOUS ANIMALS. — Bees, — Bees are fenz noftira, and until hived 
and reclaimed, no property can be acquired in them: QiUet v. Mtuon^ 7 Johns. 
16. Wild bees In a tree belong to the owner of the soil where the tree 
stands: Ferguson v. MiUer^ 13 Am. Dec 519. Finding a tree on the land of 
another containing a swarm of bees, and marking the tree with the finder's 
initials, is not a reclaiming of them sufficient to vest property therein in the 
finder: OiUei v. Maaon, supra. But the ownership of the owner of the 
soil upon which a bee-tree is growing, in the bees, is not of such a nature as 
would make it larceny to steal them: Willis v. Mttut, 3 Binn. 546. And the 
owner of the soil upon which a tree is growing in which reclaimed bees have 
taken up their abode is not the owner thereof. If the person who reclaimed 
■ueh bees is able to identify them, his property therein continues: Oof v. 
KiUs, 15 Wend. 550. 

Singing Birds, — ^A person may have a valuable property in a tame canary- 
bird. *'To say that if one has a tame canary-bird, mocking-bird, parrot, or 
any other bird so kept, and it should accidentally escape from its cage to the 
street, or to a neighboring house, the first person who caught it would be its 
owner, is wholly at variance with our views of right and justice;" Mcummg 
v. Mitcherson, 69 Ga. 447; S. C, 47 Am. Rep. 764, and note. So a tame 
mocking-bird may be the subject of valuable property: Haywood v. SiiUe^ 41 
Ark. 479. This was a case in which the defendant was charged with the 
crime of larceny in having atolen a bird and the cage in which it waa con- 
fined. The court say: "The market value of the bird was, perhaps* mors 
than ten times that of the cage, which waa the^aubject of petit laroeny. To 
hold that laroeny might be committed of the cage, but not of the bird, would 
be neither good law nor common aenae.*' 

Whales. — By capturing and killing a whale, and leaving it floating upon 
the ocean with marks of appropriation, it becomes the absolute property of 
its captors: Taber v. Jenny, 1 Sprague, 315; and they may maintain an no- 
tion against one who appropriates it with or without knowledge of their tities 
JiarUeU v. Budd, 1 Low. 223. A usage that a whale which has been har- 
pooned by one ship's crew, and which runs with the harpoon and line at- 
tached, being pursued by such crew, shall belong to them as against the crew 
of another vessel which capture it^ is admissible, and if shown, will be given 
effect: Sw\ft V. Oiffbrd, 2 Id. 110. So in Massachusetta bay fin-back whales 
are killed with bomb-lances, and sink to the bottom. They float to the ear* 
face in two or three days; and a uaage that they ahall belong to the penon 
who killed them, no matter by whom found, is enforced: Ohen v. Bkk^ 8 
Fed. Ktp. 159. 

April, 1857.] Wheatlet v, Ha&rib. 261 

O ftierB, — OjBten^ thoogb generally ipoken of m anfmili /arm notercB, and 
perhaps are so, strictly speaking, differ from the majority of sooh animals in 
several particnlars. They do not need to be tamed; they cannot escape, pos* 
sessing no power of locomotion; nor oan they have animnm reveriendu It 
follows, therefore, that a man oan have a prop e r ty in them only when they 
an in his possession, bat when in such possession, hisowiTerahip of them is as 
absc^ute as of inanimate things or domestio animals: Brimeherhofy, StarkmSf 
11 Barb. 248; SitUe y. TV^for, 27 N. J. L. 117. Qysten planted by an indi- 
vidnal in a bed dearly designated and maiked oat in navigable waters, whieb 
ars free for all the inhabitants of the state, are the absdnte individoal prop- 
erty of the person planting them. Bat it is indispensable to the ezistenoe of 
the right of property in oysters thas planted that the bed shall not interfere 
with the exercise of the common right of fishing; for if the oysters were 
mingled with and nndistingnishable from others of natoral growth in the 
public waters, the interest of the person planting them woald be subservient 
to the public use: LowmUa v. Diehermm, 34 Barb. 586; Decker y. lUker, 4 
Id. 692; Fleet y. Hegeman, 14 Wend. 42; Stale v. Tajflor, 27 N. J. L. 117. A 
person who plants oysters in navigable waters oppoaite to the land of another 
person does not thereby acquire such a possession of them as will enable him 
to maintain traspaw against the owner of the adjacent land for taking them 
away: BrmcUrhofy, StarUne^ 11 Barb. 248. 

Doses, PtgeumB^ Wild Qteae^ PkeaeamU^ efo.~It appears that for doves to be 
a snbjeet of property they must be confined in a dove-house: ComnumweaUh 
V. ChoMee^ 9 Pick. 15; S. C, 19 Am. Dec 348. But the property in carrier* 
pigeons oontinnes, although they be absent from the home of their owner» 
flying aeross the country in process of training: See case reported in the Law 
Times, May 28, 1881; S. a, 23 Alb. L. J. 482; see also Bexv, ^rooli,4 Oar. k 
P. 131 ; Begma v. Clienfor, 8 Eng. L. ft Eq. 598. Wild geeee which have become 
tame and gentle, and have lost their power or disposition to fly away, become 
the absolute property of the person who tamed them, and his property in 
them is not loet by their straying away to a neighbor's house: Atn&ry v. 
^yim, 10 Johns. 102; 8. C, 6 Am. Dec. 316. Pheasants which have been 
reared by a hen, and were never wild, and young pheasants hatched by a hen, 
and under her care, are such objects of property that stealing them amounts 
to larceny: Begina v. Canf, 10 Cox a C. 23; Begina v. Oarnham, 8 Id. 451; 
8. C , 2 F. & F. 347. In speaking of the wild animals in which a man may have 
a valuable property. Bishop says: '*0f animals of which, when reclaimed, Ur^ 
ceny may be committed within the foregoing rules, are pigeons and doves, 
hares, coniee, deer, swans, wild boars, cranes, pheasants, and ptftridges, to 
which may be added fish valuable for food, including, undoubtedly, oysters." 
And he cites, among casea already dted, 1 Hawk. P. C, Curw. ed., 149, 
sec 41, 42; 4 Bla. Com. 235; 1 Hale P. C. 511, 512; 3 Inst 110; Begina v. 
SkieOe, L. R. 1 C. C. 158; Begina v. Head, 1 F. & F. 350; Begina v. Boe, 11 
CozG. G. 554; 2 East P. C. 610; 2 Bishop's Crim. L., sees. 771, 772; see also 
CommanweaUh v. Beaman, 8 Gray, 497. 

B^faloes.^A tamed and domesticated buffalo is not included in the word 
** cattle," as used in an act to prevent cruelty to the same: State v. Creiuhaw, 
22 Ma 457. But a buffalo which has been captured when a calf, and reared 
on a farm with domestic cattle, and becomes so tame as to take food from the 
hands of its master like other cattle, and to be easily driven home when it 
stays away, is no longer of a wild nature, but is the subject of property, and 
for any traspass committed by it the owner is liable, and for any injury done 
to it by others he can recover damages: Olerp v. /ones, 81 HI. 403. 

*5* Bryan ti Hunt. [Todil 

OUer. —An ottsr It mi animal ferce notens, bn t being valiubb for iti for, if 
It be reelaimed, confined, or dead, it is the property of the penon so holding 
It, and to steal it from him is larceny: SiaU ▼. Houae, 60 N. C 810. 

CM>fu.—In Warren v. State, 1 O. Greene, 106, the ooort held that a man 
iias not snch a property in a ooon as makes it larceny to steal it fttmi him. 

F^MBisuoN.— We have seen that in order to aoqniie a yalnable propertj in 
^animals/crts naluroB, they most have been captured or reduced to 
.Upon this qnertion, see oole to OrMT V. iStonM^ 18 Am. Deo. Att. 

Bbtan V. Hunt. 

U Bhibd, so.] 

evidence of what passed between the parties before it was written on^ 
or while it was in preparation, to change or vaiy its terms, is not admis- 
sible. This rule does not exolnde agreements or stipnlatioos made aftsr 
its execution, however. 

It is CoMpmcifT, at Ant Tnia uvobb Bbsaoh of Eibouto bt WBirnor 
CoNTRAor TO Ghasgi or vaiy its terms by a parol agreement, or to 
annul or dissolve it altogether, if done upon a sufficient consideration. 

It 18 CoMPBTKNT, » Aonov AOAivsT Vbndob fOB Failubb to Dblivxb 
Floitb bt Ckbtaizt Agbbed Date, for him to show that the vendee had 
said, after the written agreement had been made, that if the tide did 
not rise in the river over which the flour was to be transported, it need 
not be delivered by that time. The effect of this evidence is a qnestloa 
of fact for the Jury. 

AflsuMPBiTi in which the verdict and jodgment went for th« 
defendant. The opinion states the facts. 

Maynard^ Haynea^ and Deadrick, for the plaintJif. 
Nelson and Heiskellf for the defendant. 

By Courty McEimxr , J. On the twenty-second of NoTember^ 
1854, an agreement in writing, not under seal, was entered into 
between the parties, whereby Hunt — whose residence was at 
Spurgeon's Mill, on the Holston riyer, in Sulliyan county — 
agreed to deliver to Bryan at Chattanooga, on the Tennessee 
river — ^the place of residence of the latter — *' five to six hundred 
barrels of flour,'' at a stipulated price; ** one hundred or mora 
barrels to be delivered on the first tide, and the balance to be 
delivered as soon as: convenient between now and the first of 

Part of the flour was delivered within the time stipulated; 
and for the failure to deliver the remainder before ** the first of 
June," the present action was brought. 

fkpL 1857.] Bbyan v. Huht. 

The defense is placed upon the gionnd that the ddiTezy of 
the remainder of the flonr was prevented by reason of the want 
id a sufficient tide in the Holston river. 

The proof shows that immediately after the contract was com- 
pleted and the written instrument signed by the parties^ Hunt 
asked Bryan, '* if there was no tide» would he expect him to de- 
liver the flour." To which Bxyan replied, ** he did not expect 
him to deliver it if there was no tide." 

The question for our consideration is in regard to the admis- 
sibility and effect of this evidence, which, though objected to 
by the plaintiff, was allowed to go to the jury, who rendered a 
verdict for the defendant. 

It is a well-settled rule of the common law, independently of 
the statute of frauds, that where a contract has been reduced to 
writing, and is complete in its terms and free from ambiguiiy, 
verbal evidence is not allowed to be given of what passed be- 
tween the parties, either before the written instrument was 
made or during the time it was in a state of preparation, so as 
to add to or subtract from, or in any manner to vary or qualify, 
the written contract. The written instrument must be con- 
sidered as containing the true agreement between the parties, 
and as furnishing the best evidence of their final intentions and 
acts. And this rule, excluding prior or contemporaneous stipu- 
lations or conversations, applies with no less force to simple 
contracts than to contracts l^ specialty: 4 Phill. Ev., ed. of 
1849, note 295. 

But though all verbal negotiations and stipulations between 
the parties to a written agreement anterior to or contemporane- 
ous with the execution of the instrument are in general to be 
regarded as merged in it, it is well settled that the rule has no 
application to stipulations or agreements made between the 
parties subsequent to the execution of the written instrument. 

Agreements not by specially, whether written or unwritten, 
are of the same grade and digniiy in law, and are denominated 
simple contracts. Hence it follows that to admit evidence of a 
subsequent parol agreement, for the purpose of showing an 
abandonment, discharge, or alteration of the terms of a previous 
written agreement not under seal, would not be to affect or dis- 
solve the agreement by matter of an inferior nature. And there- 
fore it is generally admitted that it is competent to the parties 
to an executory written contract not under seal, at any time be- 
fore breach thereof, by a subsequent verbal agreement founded 
on a sufficient consideration, either to waive altogether or dis* 


264 Bryan v. Huht. [Temik 

8olYe or annul the pravioiiB written agreement, or in any manner 
to add to, subtract from, or yarj or qualify the stipulations of 
such agreement, and thus to make a new or different contract: 
Ch. Gont, ed. of 1848, 107; 2 Phill. Et. 868, 864; 4 Phill. Ev. 
801, note. 

Upon the principle announced, it is clear that the eyidence- 
of the Bubeequent conrersation between the partiee was admis- 
sible upon the question of fact — ^whether the parties by a sub* 
sequent parol agreement had altered or modified the original 
written contract, either in its terms or legal eflfoct. Of course 
it is a question of fact whether or not the subsequent conyersa- 
tion furnishes sufficient evidence of an agreement to alter or 
modify the prerious written contract. 

Upon other questions discussed in the argument we think it 
unnecessary to express an opinion. The case must rest upon 
the point and be governed liy the principle before stated. And 
as the charge of his honor the circuit judge presents the case in 
a different aspect, and applies a different principle for its decis- 
ion, the judgment must be rerersed, and the ease remanded 
for a new trial. 

OoLLOQUixTM OB Oral NaooTiATioira LsAnoro TO GoMTBAor wfakh the 
ptftiM ooosummate by rednoiiig to writing oumot be iDtrodnoed in •videnoe 
to explain or vary the writing. The law exdndee any oth«r OTidenoe of the 
langnage naed 1^ the parties in making the oontraot than that whioh is fur- 
nished by the instmment itself: Blotaom v. Orffln, 87 Anu Deo. 76, and catea 
In note; see also Emery ▼. Webaier, 66 Id. 274; PUUburp ▼. Xodfas, Id. 711; 
Boekmore v. J> a ven p ofi, 65 Id. 132. 

Written Gomtbaci mat bb Altbbbd by subsequent parol agreement^ 
where the slteration is made on a good consideration, and before any breach 
of the oontiaot. And in sn action for a breach of the written oontract, such 
alteration may be proved, although the oral agreement be within the opera- 
tion of the statute of frauds: Oummingt v. Arnold, 87 Am. Deo. 156. An 
oral agreement made after written agreement, and before the breach thereof, 
is admissible to show a new contract waiving, varying, or annulling, the writ- 
ten contract: Spann v. BaUttett, 46 Id. 346; see also cases in notes to Heraom 
T. Hendermm, 53 Id. 187; Adama v. Wilmm, 45 Id. 242. 

Thb pbincipal casb is cited to the point that parol evidence of previous 
«r contemporaneous stipulations or terms not incorporated In a written con* 
tract is inadmissible to vary or contradict the terms of the written instru- 
ment, in Etut Temu etc. R, R. Co, v. Cfammon^ 6 Sneed, 570; Ktarly v. Dtca- 
eoM, 1 Head, 400; FUldsr. Stwuion, 1 Coldw. 42; and inLyti^ v. Ba§8, 7 Id. 
303, to the point that parol evidence is admissible for the pmpoee of estab- 
lishing a separate collateral and sabstantive oontraot betwe e n the patties, not 
embiaoed in the writing sued on* 

Dee. 1857.] Shelton u JoaNSOH. 16ft 

Shei/tok v. JoEsaoa. 


Lb PxvDBra. — ^The doetriae of U» pemden* ia thftt aay Intarert aoqnlnd in 
the mbjeot-matter of a rait while it ia peoding will be regptfded m a nul- 
lity as to the plaintiff't titles which may be established by a judgment 
or deeree in the suit. 

VoanaxE ow Ln Pbtdsiib bab No Bztbatxuutobial Opbbatiov; and 
oQBseqnently the pendsnoy of a snit involving the title to oertain prop- 
er^ in one estate is no notice to a pmohaaer of sud prop st ty living in 
another state to which it has been removed. 

TmasuKFTiov of Law Stated nr BooKfl^ that "Lb P Mai>*HB n NonoB 
TO All thb Wobld/' most be limited in its ocmstnotion to all penoae 
within the jurisdiction or state where the suit is pending. 

FkovBioN nr Federal Gokstitotiok that "Fvll Faith ahd Cbedit 
■hall be Given in each state to the public acts, ieooids» and judicial 
proceedingi of every other state " does not extend the application of the 
doctrine of lU pendens beyond the limits of the state where the suit ie 
pending; it does not mean that all the effects and ooosequences of a liti* 
gstion in one state shall follow it to another. 

Bnx. in ehancery to xeoorer certain slaves in pooooooion of de- 
fendantSy and pnichaaed by them in this state. Thej have been 
in defendants' possession for more than twenty years, but com- 
plaanants claim that their right is not barred, as there has been 
a suit pending in the Tiiginia oonrts, involving the title to these 
slaves, from a time anterior to defendants' pnrohase. Defend- 
ants' demnner to the bill was sosiained* 

E. H. Euring^ and B. H. and John A. MoEwen, for the eom- 

W. F. Cooper^ for the defendants. 

By Oonrt, Oabothbbs, J. Ihiscaseiaises a question upon the 
application of the doctrine of lis pendens in a shape in which it 
has not before perhaps been presented to our cooits. It comes 
op upon demurrer to the bill. The facts set forth in the bill 
are these: Joshua Shelton of Virginia, by his will, left the slaves 
from which those in controversy descended to his wife, Polly 
Shelton, for life, and then to the complainants. In 1819 they 
filed their bill in the chancery court at Lynchburg, Virginia, 
against the widow and Bell aod Woodruff, upon the ground 
that they had conspired to defeat the remainder, and to have the 
same made secure by bond for the forthcoming of the slaves, 
at the termination of the life estate. The security was given 
under an order of the court by Bell, but his sureties became 
iasdlventy and he removed with the slaves to Tennessee in 1820. 

266 Shelton v. Johnson. [TeniL 

The defendants hold said sLiyes as purchasers from Bell or his 
vendees, either mediate or immediate. By a decree of the 
twenty-fourth of June, 1868 the rights of tiie parties were ad* 
judicated and settled in that suit; and the case still continuing 
on the docket, an order was made in 1866 that Balph Shelton 
and another should pursue the slayes, and if neoessaiy, 
«uit for them. In pursuance of that authority, this bill 
filed on the twenty-eighth of July, 1856. Polly Shelton died 
in 1850. 

It is further charged in the bill that said Bell claimed the ne- 
groes as his own in Tennessee from 1820 to about 1888, when he 
conveyed those now sued for to Ferrell to defraud his creditors. 
He sold Matilda and her children to Johnson, who died, and 
they were bought at the public sale of the property by defend- 
luit Alford, who now holds and claims them. In 1844 said 
Jonathan Bell sold Wesley, another one of the slaves, to David 
A. Bell, his son, to defraud his creditors, and he, in the same 
year, sold him to Bobards, and he to the defendant Bailey 

For these slaves this bill is filed against Alford, Johnson, and 
David A. Bell. The defendants demur, ui>on the ground that 
by the showing of the bill they are protected by the statue of 
limitations. In answer to this, the complainants contend that 
the defense cannot be allowed, because of the pendency of their 
suit in Virginia for these slaves from the year 1819 until the 
present time, and that by the doctrine of lis pendens, no valid 
right could be acquired to these slaves to which they claimed 
title in their suit under any of the defendants in the same. 
The chancellor sustained the demurrer, upon the ground, as he 
states in his decree, '' that the pendency of the litigation in the 
state of Yiiginia, mentioned in the bill, was no notice to the 
defendants of complainants' rights nor of such litigation, and 
consequently that the complainants' claim to the negroes in 
controversy has been long since barred by the statute of limi- 

Without stopping to inquire for the present whether there 
are no other grounds upon which the decree could be main- 
tained besides that on which the chancellor places it, we will 
briefiy examine that. The argument here is confined to that 
point, and if that is with the defendants, it is certainly decisive 
of the case, without reference to other grounds that might 
probably, in reference to the statute of limitations, be assumed. 

Then, if the pendency of a suit in the courts of this state for 

Dee. 1867.] Shiltok v. Johnsov. 287 

personal pxoperiy would preTsnt the operation of the statute in 
favor of one olaiming adyeraelj upon a title and possession 
commencing daring the pendency of the snit, which question 
need not now be considered, would a suit in another state haTe 
the same effect? or, in other words, does the doctrine of li$pet^ 
dens have extraterritorial application f 

The rule on this subject is, that any interest acquired in the 
subject-matter of a suit while it is pending will be regarded as 
a nullity as to the plaintiff's title, which may be estabUshed by 
a judgment or decree in the suit. 

The rule is generally placed on the ground of notice, either 
actual or constructiTe. The law presumes that ** judicial proceed- 
ings during their continuance,'' says Adams in his work on equity 
jurisprudence, at page 167, ''are pnUidy known throughout 
the realm." In note 1, on the same page, it is laid down that 
** the whole world — ^that is, all men in that jurisdiction or 
atate— are warned that they meddle at their peril with the prop- 
erty sued for, and specifically pointed out, in such judicial pro- 
ceedings." Such is there said to be the principle of Us pendeM. 
This rule is founded more upon the necessity for it, to give 
efiSBct to the proceedings of courts, than upon any presumption 
of notice. Without such a principle, all suits for specific prop* 
erty might be rendered abortiye by successiYe alienations of the 
property in suit; so that at the end of one suit another would 
have to be commenced; after that, another, by which it would 
be rendered almost impracticable for a man erer to make his 
rights available by a resort to the courts of justice. Whether 
thid rule is founded on the idea of notice, or is a positive, arbi- 
trary rule, suggested and sanctioned by policy or necessity, 
there is certainly no principle more essential to the administra* 
tion of justice than the doctrine of lis pendens^ though attended 
with occasional hardships. But if extended beyond its proper 
limits, it would become unjust and pernicious. 

This whole doctrine is very fully examined in French t. Loyal 
Company^ 6 Leigh, 646-681; Newman y. Chapman^ 2 Band. 102 
(U Am. Dec. 766]; and 2 Lead. Cas. Eq., pt 9, p. 168. 

But the question here is not so much what the doctrine is as 
the extent of its application. A very able and ingenious argu- 
ment is made in this case to prove that the same effect must be 
given to the pendency of a suit in this respect in all the states 
of this Union that it has in the local forum. 

We are referred to article 4, section 1, of the constitution of 
4he United States to establish this position: '' Full faith and 

268 Shelton v. Johnson. [Teiu» 

credit shall be giyen in each state to the puUic aets, zeo« 
ords, and judicial proceedings of eyeiy other state/' It is- 
argued that the suit in Virginia was a ** judicial proceeding/' and 
that as its effect, under the doctrine of lis pendens, would there 
be to avoid all contemporary sales of the properfy^ the same 
effect must be given to it in this state. 

Bj the next clause, congress is required to prescribe by gen- 
eral laws the manner in which such ** records and judicial pro- 
ceedings shall be proved, and the effect thereof." This provisioik 
has never been held to authorize the issuance of. final process to 
execute decrees and judgments of another state. It only recog- 
nizes the rights of parties as settled according to such record,. 
and becomes the foundation of an action in any other state in the 
place of the original cause, and closes all investigation of the 
merits, where it appears the court from which the record comes 
had jurisdiction of the parties, with some few excepted cases. 
This is what is meant by giving * * full faith and credit." It does 
not mean that all the effects and consequences of a litigation in 
one state shall follow it to another. 

The principle of lis pendens is, as we have seen, to prevent 
any obstruction being thrown in the way of the execution of a 
judgment after it has been pronounced at the end of a litigation 
in the courts, by intervening rights acquired to the thing sued 
for. Bighls so acquired will not be permitted to frustrate the 
objects of a suit in court, but it wiU be passed over as if they 
had never existed. But the judgments of sister states cannot 
be executed here by process, and therefore the reason of the 
rule does not apply. There is no recognized comily between 
the states that would require such an effect to be given to judi- 
cial proceedings, of which we are aware. 

It is a very strong and forced presumption to make in most 
cases, within the same state, that all its citizens have knowledge 
or notice of all the suits that may be pending in all the courts 
of record in the state. But though we know it is the presump- 
tion of an impossibility, yet the urgent policy of the rule has 
forced its adoption. But it would be an absurd and unreason- 
able extension of it to make it apply to every court in the Union. 
This would shock the common sense of mankind, and bring 
odium upon the whole doctrine. The phrase thrown out in 
the books, in laying down the rule that ** lis pendens is notice to 
all the world," must be limited in its construction to all person« 
within the jurisdiction or state where the suit was pending. K 

Dec 1857.] Ames v. Nobman. , S69 

<!aimot be carried further upon ooneot princqded or ftason^ 
and there is no autboritj on the question to oontrol us. 

The result is, that the decree of the chancellor is ooneot, and 
must be affirmed. _^^^ 

Fob Extkhbiys Dnouanoir or Dootunb of Lib Psn>iira» ne note to 
NtwmomY. Chapman^ 14 Am. Deo. 706; and for* odUeotioiiof omm leporled 
in this aeriM, Me note to FUUher y. FerraU 35 Id. 143; TriMU y. Boalkb^. 
15 Id. 526; Whutan y. Westfddi, 58 Id. 278; Clark't Hein y. /arrow, 52 Id. 

PuBCHASBB or SvBJiCT-if ATTSB or SviT FnfDBVTi Lttb AcqmTM no in- 
terest as agninst the title, whether l^gal or equitable, of the pUintlff in that 
enit: Briaeoe y. Bmrnamgh^ 46 Am. Deo. 108. 

EzTBATXKBiTOBiAL OpJBBATiOK. — ^Upon this question the oiee of Fldeket 
y. Ferral^ 35 Am. Dee. 143, is in direct oonfliot with the principal case. In 
this case the court hold that the parehaser of property in one state while a 
suit is pending in another regarding its title is a parohaaer pendenU lUe^ and 
subject to the operation of the doctrine of lis pouieiw. And the court base 
their decision upon the oonstmotion of article 4, aection 1, of the federal con- 
stitution, the application of which was denied in the principal case. The 
reasoning of the Utter case appears to be the most safe and oonyindng. In 
liart y. Hawkins^ 6 Id. 666, the court remark that eztfaterritorial proceed- 
ings do not of themseWes operate as oonstructiye notios^ and in PoweU y. 
Williams, 48 Id. 105, it is said that li9 pendena is notice to all persons, at 
least within the jurisdiction of the state. 

Purchaser will be AmDoru) with constmotiye notice wheneyer his pur^ 
chase is made during the prosecution of a suit brought to enforoe an adverse 
claim or title which is set forth with sufficient certainty and distinctness to 
advise him of its bearing on the property in litigation: EoberU v. FrancU, 9 
Heisk. 133; BcBhear v. Xoy, 6 Id. 166. The doctrine of Ut pendens is not a 
ground for liberal but strict ooostruotion, with a view to the protection of 
innocent third persons not having actual notice. If the mle be extended be- 
yond its proper limits, it would become unjust and psmieioasi CoekHU y. 
ifsiMy, 2 Tenn. Ch. 59, all dting the principal 

Ames v. Nobmah. 

[4 SsxxD, 688.] 

BusBAVi) AHD Wm— Husband's Comtbol ovkr Jonrr PsoFSBirT. — ^During 
the covertuie, the husband has the same rights and power over real estate 
conveyed to himself and wife as he has in regard to the wife's Individual 
estate owned by her at the time of her marriage. Without his wife's 
eonsent he may transfer such estate, may charge it at law with his debts, 
and it may be seised and sold by his creditors. But the purchaser ac- 
quires no greater estate than the husband, and consequently he holds it 
anbje^ to the contingent right of the wife, who, in case she survives hsr 
husband, becomes absolute owner of the whole estate. So if the baa* 
band survives, the purchaser acquires the fee in the whole estate. 

270 Ames u Norman. [Tenitr 

WmcKi HnsBAMD ahd Wifjb are Jointly Skibed or Real Estate, Pu»- 
CBAasB THBBSOF AT EXECUTION Sale foT the debt of the husband cen- 
nofe be affected in hia title thereto by the aubaeqnent divorce a vmetdo 
of auoh huabaod and vrife. He holds such property abeolately, sabjeot 
to the contingency that the wife shonld ontliTe her husband, in which 
case her title attaches in fee. 

Bill for diyoroe; also that a oertain tmot of land be decreed 
to be the sole and absolute property of complainant. The opin- 
ion states the facts. 

Martin, for the complainant. 
HaUon, for the defendant. 

By Court, McEinnet, J. This was a bill for a diyoroe, and 
likewise to haTe the title to a izact of land diyested out of the 
defendant Norman and Tested in the complainant. The chau- 
cellor decreed for the complainant, both as against the husbancl 
and the defendant Norman. The former acquiesced in the de- 
cree of diToroe, and the case is brought here by Norman, in 
whose behalf it is insisted that the decree divesting him of title 
to the tract of land in the pleadings mentioned is erroneous. 

The facts upon which the question arises are these: On the 
thirty-first of January, 1835, some time after the marriage of the 
complainant and the defendant William Ames, one Lawrence 
8yi>ert couTcyed to them jointly a tract of land situate in Wil- 
son county, containing fifty-four acres, for the consideration, aa 
recited in the deed, of three hundred and thirty-three dolloi-s. 
This deed of conyeyance was properly proved and admitted to 
registration on the day of its execution. The bill alleges and 
the deed recites, and there is proof tending to establish the fact, 
that the purchase money of said tract of land was part of the 
distributiTe portion of tiie complainant of the estate'of her de- 
ceased father. On the fourteenth of May, 1853, B{dd tract of 
land was sold at execution sale in satisfaction of a judgment 
against the defendant William Ames; and the defendant Nor- 
man, as a creditor of Ames, afterwards redeemed the land from 
the purchaser at said sale, previously to the filing of the present 
bill, and by virtue of the title thus acquired, he resists the right 
of the complainant to recover the same. And the question for 
our determination is. Can he successfully do so? Upon this 
precise question we have found no direct adjudication, but upon 
principle, we think the question is free from doubt. ^ 

The first question to be considered is. Had the husband such 
an interest in the land of which he and his wife were jointly 

Dee. 1857.] Ames e. Norman. 271 

seised as was snbject to seiasnre and sale on exeeation hy hia 
creditors f And if bo» is the interest or title of the purchaser 
at execution sale subject to be diTcsted, or in any way affected, 
by a sabseqnent divorce a vinculo matrimonii granted to th# 

1. By the common law, the husband and wife are as one per- 
son in law; the legal existence of the wife is incorporated into 
that of the husband; and though in modem times exceptions to 
this doctrine have been introduced, the general principle still 
exists. As one of the necessary results of this unity of persons 
in husband and wif e, it has always been held that where an 
estate is couTcyed or derised to them jointly they do not take in 
joint tenancy; constituting one legal person, they cannot be 
Tested with separate or separable interests. They are said, 
therefore, to take by entireties; that is, each of them is seised 
of the whole estate, and neither of a part. And this tenancy 
may exist whether the estate is in fee, for life, for years, or 
other chattel interest, and whether the property be in posses- 
sion, reversion, or remainder: Co. Lit. 187 b; 1 Bright on 
H. & W. 26. As a consequence peculiar to this tenancy, it is 
laid down in the books that during their joint lives neither 
can alien the estate thus held, without the consent and concur* 
rence of the other, and the survivor takes the whole estate; 
neither can sever the joint interest; the whole estate belongs to 
the wife as well as to the husband, and the husband cannot, by 
his own conveyance, the wife not joining therein, divest her 
estate: 1 Oreenl. Cru. 865; 2 Bla. Com. 182; 2 Kent's Com. 182; 
4 Id. 868. 

From the peculiarity of this tenancy, the unity and indivisibil- 
ity of the seisin, there is some confusion in the cases respecting 
the power of the husband alone to make any conveyance or dis- 
position of the land thus held during their joint lives, and also 
as to the right of creditors of the husband to subject the same 
to the satisfaction of the husband's debts. But upon examina- 
tion of the authorities, it appears to be settled that during theii 
joint lives the husbaod may dispose of the estate. He may 
lease or mortgage it, or it may be seized and sold upon execu- 
tion for his debts. The doctrine, properly understood, is that 
the husband, without the wife's joining him in the conveyance^ 
cannot alien the estate so as to affect the interest of the wife in 
ease she survives him, as in that event she will be entitled to 
the whole: 4 Eenfs Com. 868. Nor will the wife's interest be 
affected by the attainder of the husband; she wiU, on surriving^ 

272 Ames v. Nobman. (Tenn. 

take ihe whole estate. By the attainder of the husband of f el* 
ony, the crown will not acquire the fee, bat only the pemanoj 
of the profits during the coyerture of the wife: Oo. Int. 861. 

It seems, therefore, that notwithstanding the peenliar nature 
of this tenancy, the husband, during the coverture, acquires 
substantially the same rights, und power of disposition of the 
estate thus held, that he does in regard to the. wife's individual 
estate owned by her at the time of her marriage. Oonsequently 
it follows that the husband, without the consent or concurrence 
of the wife, can charge such estate at law with his debts; that 
he may transfer it; that it may be seized and sold by his credi- 
tors. But the assignee of the husband, or purchaser at execution 
sale, can acquire no other or greater interest than was vested 
in the husband; and consequently, he holds in subordination to 
the contingent right of the wife, who, in case she survives the 
husband, becomes absolute owner of the whole estate. So, on 
the other hand, if the husband survives, the purchaser from him 
or at execution sale becomes owner in fee of the entire estate: 
Rogers v. Orider, 1 Dana, 242; Barber v. Harris^ 15 Wend. 615; 
Jackson v. McConnell, 19 Id. 176. 

2. It being established that the interest of the husband in 
such an estate may be sold on execution for the satisfaction of his 
debts, we proceed to inquire whether the title of the purchaser 
is liable to be affected by a divorce a vinculo afterwards granted 
to the wife. 

The decree in this case would seem to take it for granted that 
upon a dissolution of the marriage by a divorce at the suit of 
the wife, the same legal consequences follow, in all respects, as 
if the marriage had been dissolved by the death of the husband. 
This is a very erroneous assumption, so far at least as relates to 
the question under consideration. 

In England, divorces a vinculo matrimonii are granted only 
for such causes as by the ecclesiastical law are sufficient to avoid 
the marriage in the spiritual court; and in such cases the 
marriage is declared void, as having been absolutely unlawful 
4ib initio: 1 Bla. Com. 435, 440. In a divorce of this kind, 
grounded upon the nullity of the marriage contract, it is said in 
the books that the husband acquires no right over the wife's 
property; though in some of the authorities a distinction appears 
to be taken between the wife's personal and real property. If 
the husband, before the divorce, had disposed of the goods of 
the wife without collusion, it seems she was without remedy; 
but if the sale or gift were collusive, she might recover the 

Dec 1867.] Ames «l Nobman. f78 

goods BO far as thqr ooold be trsoed, and for ihs XMt» ss monej 
«ic.y she might soe in the quxitual oonrt: 2 Bright on H. k 
W. 864, 866. This distinction perhaps arose oat of the doctrine 
maintained bj the ooorts of common law, that marriages con- 
trory to the eoclwriastical law, though Toidable, were not igmo 
/acta Toid nntil sentence of nnlliiy were pronounced* 

In regard to the wife's real property, it is settted that if the 
Lnsband aliened the land of the wife, of which he was seised 
in right of the wife, and a divorce was afterwards obtained, the 
wife's right remained unaffected hy the husband's cony^yance; 
such conyejance did not work a discontinuance of her estate, 
and by construction of the statute 82 Hen. vm, it was held 
that she might immediately enter. 

And, more directly to the point under conrideration, it is laid 
down that if the husband and wife purchase an estate jointly 
and are disseised, and the husband releases, and afterwards 
they are diyoroed, the wife shall haye the moiety, though before 
the diyorce there were no moieties, for the diyoroe conyerts it 
into moieties: 1 Bright on H. & W. 26, 162, 166; 2 Id. 864. 

This must necessarily be so; for although in such case the 
relation of husband and wife existed de /ado at the time the 
oonyqrance was made to them jointly, yet, in contemplation of 
law, that unity of persons out of which this anomalous tenancy 
springs, and on which alone it depends as a mere incident, 
neyer did exist; and as some effect must be given to the con- 
veyance, the divorce is regarded as having severed the entirely, 
and turned it into moieties. 

It would seem reasonable that this principle should be held 
equally applicable to cases where a marriage lawfully contracted 
is dissolved by a divorce a vinculo for some supervenient cause, 
as frequently happens under our law, though its application is 
perhaps not so easy in such cases as where the marriage con- 
tract was void ab initio. 

If the rights of husband and wife in relation to an estate 
held by entireties are not altered by the decree declaring the di- 
vorce, what becomes of the joint estate? what are their respective 
rights in the future in regard to it? They are no longer one 
legal person; the lawitself has made them '' twain." They are no 
longer capable of holding lyy entireties; the relation upon which 
that tenancy depends has been destroyed; the one legal perbon 
has been resolved, lyy judgment of law, into two distinct, indi- 
vidual persons, having in the future no relations to each other; 
and with this change of their relations must necesMurily follow 

Am* nao. Vol. LXX— IB 

274 Ames v. Nobuah. (Tern 

a corresponding cliange of the tenancy dependent upon the pre* 
Tious relation. Ab they cannot longer hold by a joint seisin, 
they must hold by moieties. The law, in destroying the unity 
of persons between them, has, by necessary consequence, de* 
stroyed the unity of seisin in respect to their joint estate; for, 
independent of the matrimonial union, this tenancy cannot 
exist. And hence it has been held that a conyeyance to a man 
and woman while single, and who afterwards intermany, as 
they took originally by moieties, they will continue to hold by 
moieties after the marriage: 1 Inst. 187 b. 

But if this reasoning be correct, as between the husband and 
wife, the question remains. What effect has the diyorce upon 
the rights of a third person who has acquired the interest of the 
husband by purchase at execution sale prior to the divorce? 

We are of opinion that the subsequent divorce has no effect 
whatever upon the rights of such purchaser. It is true, the pur* 
chaser at execution sale succeeds merely to the rights of the 
husband in the estate; that is to say, he acquires no other or 
different right, either as regards the quantity or quality of estate, 
than was possessed by the husband; and he takes it subject to 
all the rights, legal or equitable, existing in favor of third per- 
sons at the time of the sale. But still the puvohaser is not, to 
every intent and purpose, placed in the shoes of the husband. 
On the contrary, he holds the estate independent of the hus- 
band and of his future creditors, and entirely free from all 
future accidents or contingencies that might, as against the 
husband, if the title had remained in him, have directly or 
indirectly affected the estate. 

The purchase in the present case was not made in view of the 
contingency of the wife's divorce at some future period, and 
cannot be affected by it. 

The defendant by his purchase became invested with the right 
of the husband as it existed at the time of the sale; that is, a 
right to occupy and to enjoy the profits of the land as owner dur- 
ing the joint lives of the husband and wife, subject to the con- 
tingency that if the complainant survives her former husband, 
his estate will then terminate; but if the husband survives, he 
will become absolute owner of the whole estate. 

The only remaining inquiry is, whether the act of 1849-50, 
o. 36, has any application to this case. And we think it has 
not. This act only protects from the creditors of the husband 
the interest in the wife's lands vested in him jure uxoris; in 
other words, it is applicable only to cases where the fee is in t^''^ 
alone, and not to cases where they are jointly seised in 

Dee. 1857.] Cole v. Cole. 275 

There is much force in the enggestion that to extend the act 
by constmction to a case like the present would place it in the 
power of the husband, by resorting to mere forms of convey* 
ancing, to put his entire real estate beyond the reach of his cred- 

No equity can arise in favor of the complainant in this case 
in consequence cf the land having been purchased with money 
derived from her father's estate. The money had been previ- 
ously reduced to possession by the husband, and in law 't 
thereby became his money. 

The only claim that can be admitted, on the part of the com- 
plainant in the present case, rests alone upon the doubtful con- 
tingency of her outliving her former husband. In that event, 
she will instantly become absolute owner of the entire tract of 
land; in the contrary event, she will have no interest in the 
land whatever. 

The decree will be reversed, and the bill be dismissed as to 
the defendant Norman; but without prejudice to any future 
light which by possibility may arise in complainant's favor. 

All QuBsnoNS Akisino m Pbikoipal Case ars DiscnssKD at LsiroTR 
in Den ▼. Ilardenbergh^ 18 Am. Deo. 371, and note. The following cMea 
maintain the same doctrine: Harding y. Springer, 31 Id. 61; Jadsaan v. Mo' 
Ccmndl, 32 Id. 439; Fairchild ▼. ChaateOeux, 44 Id. 117; Needham v. Branton, 
Id. 45; Oibion v. Zimmerman^ 61 Id. 168; Wyehoff v. Gardner, 45 Id. 388| 
Brcwnaon v. HvU, 42 Id. 517; MUter v. MWer, 33 Id. 157; /oAjmoii v. Hari, 
40 Id. 565; Moaa v. McCaU, 46 Id. 272; MwHn v. Jatkton, 67 Id. 489. 

The FsnrciPAL oasjb is oitxd argnendo in Allen ▼. MeCfuUough, 2 Heiak. 
175, where the conrt decide that a husband by divorce ia not relieyed from 
liability for the wife's debts, as in case of the disaolation of the relation by 
death, bnt that he continues liable as if the marriage had not terminated. It 
M also dted in Alien y. SuUle^ 4 Lea, 103, to the point that the purchaser ol 
the husband's interests in the wife's lands, prior to the passage of acts abridg. 
ing the husband's power of disposition, took it as it then stood, and without 
reference to the contingency of a subsequent diyoroe at the wife's instance, 
which therafore had no effect upon the rights of such purehaser. 

Cole v. Golb. 

(S SXSBO, 07.] 

liABUAOB IB Civil Oomtbaot, akd may bb AvomBis Lm Othbr Cow* 
TEAOXS, for want of sufficient mental capacity in the parties. If at the 
time of attempting to contract the mind is unsound, it is incapable of 
that consent which b necessary to the validity of the contract 

Mbbtal UirsocrNnNBss to Avoid Mabbiaob Cobtbact must bb Clbarlt 
Shown, and most be sufficient in degree, as it is not every unsoundness 
that will avoid t^e contract. 

^6 Ck)LS t;. Ck>LE. [Tenn. 

1 r D Vawscoja to Drxbmivs Damn of Mshtal iMCAfAOBer DnABLoio 
On VBOM Oovsnnmro to the oontnot of mrriage. Xho gaoond UtA 
b the fitneat of the penon to be tnuted with the nwiagHMat of himeelf 
and hii own oonoenie. Sooh * penon has * duponog^ oontnetng ndnd^ 
nlthongh it may be In * degree impwred, 

LovAno oir Rboainivo hu Bbasoit mat Avubm Mabbxaos odebiated 
while he wae innne* and no new adlemnimtion it 

Bill for the annulment of numriage. The opiiiion Btates ih« 

'John M. Brightf for the complainant. 
^. F. and Ed. Cooper, for the defendant 

By Court, Oabuthkbs, J* This hill was filed on the eleventh 
* of October, 1857, in the clianoeiy court of Lincoln county, to 
'- rescind a contract of marriage consummated between the parties 
U}n the sixteenth of March, 1847, upon the ground of the in* 
"feanity of the complainant at the time. The chancellor dismissed 
the bill upon the facts, and the case is hereby appealed. 

At the time of the marriage the complainant was about forty« 
six and the defendant about fifly-two years of age. He was a 
widower with a family of children, and she a widow without 
children. She had been twice married, first to Thornton, and 
then to Beddick. Thornton died about the year 1836, a short 
time after the death of his two children by the complainant, 
leaving her all his property, consisting of a plantation, twelve 
or fifteen slaves, etc. She married Beddick in 1840, and after 
living together a week or two, they disagreed, perhaps about her 
property, and she abandoned him. Each filed their bills for a 
divorce in the chancery court at Huntaville, and in June, 1845, 
a divorce was granted upon his bill on the ground of abandon- 
ment, and hers was dismissed. In neither of their bills was 
any issue made upon her mental condition. She removed to 
Tennessee and settled in Lincoln county, in 1844 or 1845, where 
she purchased a farm, on which she placed her slaves and other 
property, and continued to manage the same until her marriage 
with defendant. 

This bill is based upon the allegation that she was of unsound 
mind at the time of the marriage, as well as before and after- 
wards, and a volume of proof was taken, both in Alabama and 
Tennessee, on both sides, upon this question. The contradiction 
and confiict usual in investigations of this kind, where the mind 
is the subject and opinions are evidence, is to be found in the 

Marriage, lyy our law, is a civil contract, and may be avoided. 

Dec. 1857.] Cole v. Cole. 277 

like any other contract, for want of sufficient mental capacity in 
the parties. If the mind is unsound at the time, it is incapable 
of consent, and that is an essential element in all contracts. 

In the dark ages, when there was thought to be something 
sacred and mysterious in the matrimonial relation, and its civil 
was almost obliterated by its spiritual character, the marriage of 
persons of unsound mind was held valid. Blackstone, iu the 
second volume of his Oommentaries, 438, 439, says this was '* a 
strange determination, since consent is absolutely requisite to 
matrimony, and neither idiots or lunatics are capable of con* 
senting to anything." The test question in all such cases is, 
whether the party is capable of making any binding contract. 
The identity of the doctrine that unsoundness of mind vitiates 
this as well as all other contracts is well established. But every 
consideration of policy and humanity admonishes us that a con* 
tract so essentially connected with the peace and happiness of 
individuals and families, and the well-being of society, should 
not be annuUed on this or any other ground not clearly made out. 
The consequences in many cases would be most deplorable. 
The rights of property would be unsettled, and the peace of 
families destroyed, to say nothing about the effects upon the 
innocent offspring. The aunulmentof other contracts would 
only affect property, but this would do that and more, it would 
tell upon the happiness, character, and peace of the parties. 
The appalling character of these consequences is well calcu- 
lated to impress the courts with the solemn duly of requiring a 
dear case for the application of the general principle to this 
delicate and important contract. It is, however, only a civil 
contract, and must stand or fall by the usual tests applicable to 

It is not every unsoundness that will avoid a contract. The 
degree necessary to produce this effect is fixed by the law, and 
must be made out by proof. All persons of lawful age are pre- 
sumed to be capable of contracting, until the contrary is made 
to appear. So sanity is presumed, and if the contrary is alleged, 
it must be proved by the party imputing it. If a state of per- 
manent insanity is once shown, the burden of proof shifts, and 
a lucid interval must be proved by the other side. But the rule 
is different in a case of temporary insanity, depending on some 
eifliting cause not iu perpetual action. 

The general rule is, that ** those who have not the regular use 
of their understanding sufficient to deal with discretion in the 
oommon affiairs of life, or the weakness being so considerable as 

278 Cole v. Cols. [Tena 

to amount to dezangemeiit, are incapable of oontraoting a valid 
maniagey or makiog any other binding contract: Bishop on 
Mar. &DiT., sec. 177. 

Sir John Nicholl, in Browning ▼. Beane^ 2 Phillim. 69, 1 Ecc. 
190, as cited by Bishop, sec. 178, says: '*If the incapacity be 
such that the party is incapable of understanding the nature of 
the contract itself, and incapable from mental imbecility to 
take care of his or her own person and property, such an indi- 
vidual cannot dispose of his or her person and property by the 
matrimonial contract, any more than by any other contract." 

It is difficult to describe any exact, palpable line between 
legal capacity and incapacity. Perhaps this is impracticable 
as an abstract thing in reference to the ability to make a valid 
contract, as insanity subsists in various degrees, and the line of 
separation between it and mere imbecility is often faint and im- 
perceptible. The general test is the fitness of the person to be 
trusted with the management of himself and his own concerns. 
Such a person has a disposing, contracting mind, although it 
may be in a degree impaired. 

The proof in this case shows that the complainant has for a 
great many years labored under a disease, called by the doctors 
prolapsus uteri. This disease, when it becomes chronic, always 
more or less affects the mind. It may assume such a character 
as to destroy the intellectual faculties. Such was its effect upon 
the complainant in 1850, and from that to this time. Previous 
to 1850, it is very clear from the proof that she was only sub- 
ject to paroxysms of the disease, with intervening periods of 
composure and sanity. There is much detail in the evidence in 
relation to her conduct during these paroxysms, commencing in 
the life-time of her first husband, and continuing up to the time 
of the total derangement of her mind in 1850. She was the 
subject of great delusions in the paroxysms of her physical dis- 
ease; but when these attacks passed off, she was as rational as 
ever. These changes in her physical system account for the 
conflict in opinion in relation to her mental condition. Her 
delusion consisted in ungrounded and startling apprehension 
of conspiracies against her life by her own slaves, and her 
kindred and others. She imagined they were waykying her 
house for the purpose of killing her — putting poison in her 
water, etc. She would prepare herself with pistols and guns 
on these occasions, shoot them off in the night, and often call 
for protection; she would become wild and excited, vexy loqua- 
cious, eccentric, and foolish, when the fits of this disease were 

Dec. 1857.] Cole v. C!ole. 279 

upon her. Maoh of her conduct on the aiabjeot of courtship 
and beaux, such as showing the loye-letters of one suitor to an- 
other, and boasting about her conquests, and the like, was in 
Tery bad taste, and evinced great ecoentrioitj of character. But 
if the exceptional conduct of either widows or widowers when 
they become anxious to marry is to be regarded as delusion, 
our lunatic asylum would have to be very much enlarged. 
Eccentricity of conduct or peculiarity of manners does not con- 
etitute insanity. 

It is certainly yety clear that this lady could not ba^regarded 
•as permanently deranged until 1850. But there is as little 
•question that she was occasionally and temporarily in that con- 
ation for ten or twelve years before that time. And the impor- 
tant question is. What was her mental condition at the time of 
her marriage with the defendant in 1847 ? - There were only two 
persons present to witness the nuptial ceremony — ^her overseer, 
Bethune, and the justice of the peace, Daniel Farrar, who per- 
formed tbe marriage ceremony. The first gave his opinion that 
she was of unsound mind, and the latter thinks she was perfectly 
«ound and sensible. They both witnessed all her acts and con- 
duct on that occasion, on which they rely for their opinions, and 
arrived at different conclusions. The overseer remained in the 
house but a short time, but the magistrate staid all nigbt, and 
until after breakfast next morning. He states that he had a 
^reat deal of conversation with her, and never thought of her 
being insane, but considered her sound and sensible. 

It is in proof that she managed her own business from the 
^eath of her first husband up to the time of the marriage in 
<)ue8tion; that she contracted with her own overseer, bought 
land, sold slaves, purchased and made up her negro cloth- 
ing, and evinced judgment and understanding in all her 
business transactions. She is proved to have been a neat and 
-excellent housekeeper, both before and after her marriage with 
'Cole. The proof is abundant on these points. The result of 
the whole body of the proof is, that she was subject to great 
mental aberrations when her disease assumed an aggravated 
form, which was frequent, and when relieved of that, her mind 
resumed its healthy action again until the recurrence of another 

But if the proof established the fact that she was of unsound 
mind at the time of the marriage, there is abundant evidence 
that she waa afterwards restored, at least temporarily, and did 
oot repudiate, but her acts and conduct recognized the validity 

180 Cols t^. Colb. (Teniw 

of her marriage. A Innatio on regaining his reason may affirm 
a marriage celebrated while he was inaane: 1 Bishop on Mar. h 
Diy., sec. [189]; Mis y. BiMngs, 6 Met. 415; CamfMlY. Memer^ 
4 Johns. Ch. 333 [8 Am. Dee. 670]; and this without any new 
solemnization. If there is sufficient reason to apply this princi* 
pie to deeds and other contracts of persons incapable of con- 
sent for infancy, there is surely a better and stronger reason to 
extend it to the contract of maxriage. 

If the treatment of the complainant by the defendant could 
have any^effect upon the question in this case, as it certainly 
cannot, it would be found to afford no aid to the bill, as it has 
been kind and affectionate at all times. 

Upon the whole case, we think the marriage, with all its inci- 
dents of rights and duties, was yalid and binding on both par* 
ties, and affirm the decree of the chancellor dismissing the bill, 

Nkitbxb OcQASioirAL Paboxtsicb nor Hsbeditabt iKBAiriTT before mar- 
riage, and Qnknown to oomplainant, nor oomplete insanity after marriage, la 
ground for diyoroe: Hamaktr ▼. Hcamaber, 65 Am. Deo. 706. The principal 
eaae ia cited in McBeynolda y. State^ 6 Coldw. 23, to the point that a lonatla 
en regaining his reason may affirm a marriage oelebrated while he 
and this without any new solemnisation. 





[18 TkzMv 3TS.] 

PAirr n Bouin> bt Wbittxii Goktbact, though hib Sionatubi dom 
VOT Afpbab at its end. If his name, writteD by hinnelf, appear in any 
part of the agreement, it may be taken as hit aignatare, if it wae written 
lor the pQxpoae of giving aothenticity to the inatmment, and thn* 
operating as a eignatare. 


when a person having authority rigna the namee of all parties to the in* 

To Pdt Pboov or Kxbou t i ow or Cobtract upon Oppoobo Pabtt, it most 
be pat in issoe by the pleadings, under the provisions of the Texas stat- 

Wbirbb GoBTEACfT, SiOBATUBBS of the parties to which appear to be in 
the same handwriting, is admissible in evidence. 

AonoH upon a xacing contract, the signatoreB to which were 
in the body of the instrament, and appeared to have been writ* 
ten by one party. Said agreement was offered in evidence, bat 
was ruled out by the court, and plaintiff assigns this as error. 

(7. W. BwMey^ for the appellant. 

By Court, Whbklbb, J. In order to bind a party to a writteii 
contract or agreement, it is not necessary that his signature- 
shonld ajypear at the end of it. If he writes his name in any 
part of the agreement, it may be taken as his signature, provided 
it was there written for the purpose of giving authenticity to 
the instrument, and thus operating as a signature: 2 Parsons on 
Ooni. 287. In Johnson v. Dodgwn, 2 Mee. & W. 653, where- 
the question was whether there was a signing by the parfy within 
the provision of the statute of frauds. Lord Abinger said: ** The 

282 Linn v. Wbiqht. [Teua^ 

€8868 haye decided that although the signatme be in the 
ning or middle of the instrument, it is as binding as if at the 
foot of it; the question being always open to the jniy whether 
the parly not haying signed it r^^olarly at the foot meant to be 
bound by it as it stood; or whether it was left so unsigned 
because he refused to complete it. But when it is ascertained 
that he meant to be bound by it as a complete contract, the 
statute is satisfied — ^there being a note in writing showing the 
terms of the contract, and recognized by him." See MerriU t. 
Claaan, 12 Johns. 102 [7 Am. Deo. 286]; Clason ▼. BaOey, 14 Id. 
484; Fennimon v. Hartahom, 13 Mass. 87. If the contract was 
made and deliyered by the defendant as his agreement and un- 
dertaking, it would bind him; and it would make no difference 
that the same person may have written the signatures, if author- 
ized thereunto by the parties. The defendant did not put in issue 
the making of the contract so as to put the plaintiff upon proof 
of its execution: Hart. Dig., art. 741. And it was no objection 
to the admission of the writing in evidence that the signatures 
of the other parties appeared to be in the same handwriting. 

We are of opinion, therefore, that the court erred in sustaining 
the defendant's objection to the admission of the eyidence, for 
which the judgment must be reyersed and the cause remanded. 

Beyersed and remanded. 

NoTJB THOUGH NOT SiONXD at the bottom of the insfcroment, hat at the 
end of the last sentence but one, ia enffioieDtly signed to bind the per^ eze- 
eating the note: Prinee y. ThampsoUf 21 Tex. 481; and nnless he deny the 
execution thereof under oath, he cannot object to its being read in evidsnoe 
at the trial: Cto$e y. Jud9(m, 34 Id. 2S9. 

Linn v. Wbight. 

[18 TxxAS, n7.] 

AsnoNOB, BT Rbmaiviko in Possxssion or QooM to dispose of them as 
agent for the trustee, is deemed prima/aeie to haye oondiic M himself in 
dealing with them in accordance with an understanding with his prinoi- 
pal, who is bound to take notice of the manner in which the agent con* 
ducts himself in his employment, and who is presumed to have assented 
to his acts. 

Bmplotmxnt of Dbbtob as Aoxnt of Trustke to use and control assigned 
e£feots in a manner inconsistent with the purposes of the trust, and as 
his own, is evidence that the assignment was not made in good faith. 

AaaiovuTLsr Provxd to havb bsxn Intended to Sbocbb Pbbvbrbbd 
CBBDTTOBa, and those who had incurred liability as sureties of the 

1857.] Linn v. Wright. 283 

Mirignor, and alap to Beonre to the MBignor oertain boMifiti oat of tho 
property to the hinderance of other creditors in the eoforoament of their 
ri^htSy is frandnlent and void aa to the deferred creditors. 

CiBcmiSTANCXs KSED NOT Bx BO CoKCLUSivs UT THXiB Katu&k and ten- 
dency as to exclude every other hypotheais than the one aooght to be 
established In order to anthorise a jury to deduce from drcamstantial 
evidence the ccmcloslon of fraud. 

<)inBnoN or Fbaupuuent IinnEirr u QunmoM or Fact within the provinoe 
of the jnry to decide. 

UiTLna THEKE IS SoMS Rkhcrxngk ob DiSGBimoN to the property con- 
veyed, either in the body of the trust deed or a schedule annexed to it, 
so as to render the property capable of being ascertained and identified, 
the deed will not ordinarily transfer title, but will be inoperative and 
void. This omission is, in some cases, a badge of fraud, which may, 
however, be repelled. 

Absbkgk or ScHEDUUi ConTAiiniia DBSCKimoir or Pbopxbtt, and pre- 
pared previous to the making of the deed of trust, is a suspicious circum- 
stance, which, unless explained, or unless there is proof of what particular 
property was embraced in the assignment, is a sufficient ground to ex- 
clude the assignment from the consideration of the jury. 

IirsTRUCTiONS ABE NOT Ebbokxous merely because they do not embrace 
every aspect in which the law applicable to the case might have been 
presented to the jury. 

Mebb Omission to Give Inbtbuctionb not Asked, but which would have 
been proper, is not error. 

Undeb Texas Statute, nr OBbKB to Rendeb Judomxrt in an action d 
replevin, it is essential that the value of the pr o perty should be sscer- 
tained, and the sheriff is required to assess its value when taking the 
bond required of the claimant. This estimate may be acquiesced in by 
the parties to the suit, and taken as the true value for the purpose of 
rendition and enforcement of judgment, but it baa never been held 
that the estimate of value thus made was conclusiTe upon the partieSL 

Whkbe in Aotion or Replevin the issue made is the question in general 
terms of the claimant's right of property in the goods, and the only 
pleading before the court at that time is the claimant's answer, in which 
he does not plead his title or inform the opposing party or court on what 
title he intends to rely to maintain his claim to the property, but after- 
wards relies on a trust deed for that purpose, the opposing party must be 
allowed to impeach the validity of such deed. 

BaFUEViH to tiy tight of property in certain goods leyied Qi>on 
by yirtae of executions in fayor of defendants, and against one 
Chapman, and claimed by plaintiff as his property. Plaintiff, 
in his a£5dayit of claim, stated that the sheriff, by virtue of said 
executions, levied upon said goods as the property of Chapman; 
that the said goods were then in his (plaintiff's) possession, and 
in a storehouse known as Chapman's; that Chapman was at the 
time of the levy acting as the agent and clerk, and disposing of 
the goods, for and on the account of plaintiff; that he chums 

284 Linn t;. Wrioht. [Texaa^ 

said goods an his own; has a perfect title; that this claim is 
made in good faith; and that he is not a party in any of the 
said executions. The issae formed upon the affidavit, and under 
the direction of the court, was, Are the goods levied upon the 
property of Linn? At the trial, plaintiff introduced a deed of as- 
signment from Chapman to himself, the consideration in which 
was that the plaintiff undertook to pay the claims which certain 
creditors had against Chapman. The deed named the daima 
and creditors and described the properly, as stated in the 
opinion. Plaintiff then introduced one Phillips as a witness^ 
who testified to being a witness to said deed; that it was exe- 
cuted by Chapman and plaintiff; that the goods named therein 
were the same that were delivered to plaintiff upon the execu- 
tion of said deed; that the goods were in the hands of the 
sheriff, under attachment sued out against Chapman; that an 
agreement was made between Chapman and his attaching creil- 
itors that if he (Chapman) would find good security, they would 
release the goods; that plaintiff and certain others agreed to go' 
his security, upon condition that he assign the goods to plaintiff 
in trust, with power to sell them in order to pay the debts for 
which they were securiiy; that Chapman executed such deed,, 
and the goods were released and delivered to plaintiff, who,, 
with others, signed a note as securiiy for Chapman. One John* 
son was then sworn on behalf of plaintiff, and testified that be 
knew the goods mentioned in the assignment; that the goods 
veplevied were a portion of the same goods; that at the time re- 
plevied they were in bad condition, greatly injured, and that in 
his estimation they were not worth more than one half of their 
first cost; that plaintiff, after the goods were replevied, sold 
them at auction; that he (witness) was present during the sale, 
and that the goods were sold for a fair price. The deposition 
of Chapman was then introduced on behalf of plaintiff. It 
stated that Chapman made the assignment for the purpose of 
securing plaintiff and others as his sureties on a note for the 
payment of claims for which his property had been attached; 
that when the attachment suits were settled, plaintiff was placed 
in possession of the goods as assignee, and that he had so con- 
tinued in possession; that the goods remained in the same 
house after as before the assignment, and that plaintiff paid 
rent therefor, as also all expenses for selling the goods; that he 
(Chapman) was employed as agent of plaintiff, and was in no 
way connected with the goods after the assignment, except as 
agent, and as such received compensation from plaintiff; that 

1867.] Linn v. Wbight. 285 

during the tiine ho wis emplojed as agent ho rappooed that 
the public knew that he was acting as each; and that though 
he might have eigned instnunentB without adding the woxd 
''agent/' or for *' phuntiff as assignee/' if this was done, it 
was thxongh ignorance or from the habit of ngning as prin- 
«ipal; that all of the property owned bj him was indnded in 
the assignment^ and applied to the payment of the daims named 
therein. The juiy were instructed that if they beUered that 
the trust deed was«made in good faith, and to protect the inter- 
ests of Chapman's creditors, and that plaintiff took the goods 
to assist in carrying out the intention of Ohapman, without any 
fmudulent intent on his part, or knowing of any such intent on 
the part of Chapman, then the assignment would Test the tide 
to the properly in plaintiff, and that the juiy would so find; 
but that if th^ should find that a contntfy intention and state 
of facta existed, then the assignment would be fraudulent, and 
the properly in dispute subject to sale under the executions. 
The plaintiff asked the following instruction, which the court 
refused: " That if the juiy found for the plaintiff, th^ should 
find the value of the goods replevied." The juiy returned a ver- 
dict that the trust deed was made to delay the pajment of cred- 
itors, and that the property was subject to execution. Jud|^ 
ment accordingly, and plaintiff appeds. 

J. J. SoU^ for the plaintiff in error. 

F. S. Slcckdale and W. 8. Olan, for the defendants in enor. 

By Court, Whxkleb, J. The principal questions respecting 
the admissibility of evidence to invalidate the assignment were 
determined when the case was before us on a former appeaL 
The rulings of the court appear to have been in accordance 
with the opinion then delivered in the case, and, it is .conceived, 
the well-settied rules of evidence upon the question of fraudu- 
lent intent in the making of a deed. Unquestionably, the deed 
is to be received in the light of surrounding circumstances, in 
order to arrive at the real intention of the parties. Unquestion* 
ably the assignor, remaining in possession of the goods, to dis- 
pose of them as agent for the trustee, must be deemed, prima 
fade at least, to have conducted himself in his dealing with 
them in accordance with the understanding between himself and 
his principaL The latter was bound to take notice of the man- 
ner in which he conducted himself in his employment. What 
the agentdid, the principal must be presumed to have assented to; 
and it is not unreasonable to suppose that parties had contem- 

286 Linn v. Wright. [Tezaa^ 

plated in advance a line of conduct, which they are shown ta 
have pursued. Although the employment of the debtor by the' 
trustee is not forbidden by law, yet " if he be ])ermittedy as their 
agent, to use and control the assigned effects in a manner wholly 
inconsistent with the purposes of the trust, and as his own, it 
will be evidence that the assignment was not made in good 
faith:" Burrill on Assignments, 174; Smith v. SeavUls, 10 Ala. 
92, 106. 

The fair and natural inference deducible from the evidence is,, 
that the dealing of the parties with the goods after the assign- 
ment was consonant with their intention and private understand* 
ing at the time of making it; and that it was intended not only 
to secure the preferred creditors and those who had incurred 
liability as sureties of the assignor, but also to secure to the 
assignor himself certain benefits out of the property assigned, 
to the hinderance of other creditors in the enforcement of their 
rights. That such a purpose will render the deed fraudulent 
and void as to the deferred creditors, does not admit of question. 
To warrant the jury in so finding, it was not necessary that the 
circumstances tending to that conclusion should have been 
incapable of being accounted for upon any other hypothesis. 
There is no such rule of evidence or principle of law as that, in 
order to authorize a jury to deduce, from circumstantial evi- 
dence, the conclusion of fraud, the circumstances must be of so 
conclusive a nature and tendency as to exclude every other 
hypothesis than the one sought to be established. If the evi- 
dence is admissible as conducing in any degree to the proof of 
the fact, the only legal test applicable to it upon such an issue 
is its sufficiency to satisfy the minds and consciences of the jury. 
The question of fraudulent intent is a question of fact, which it 
is peculiarly within the province of the jury to decide. They are 
the exclusive judges of the weight of evidence; and are to be 
guided in their decision by their conscientious judgment and 
belief, under all the circumstances of the case: 1 Stark. Ev. 474; 
Briacoe v. Branaugh^ 1 Tex. 826. What amount or weight of evi- 
dence shall be sufficient proof of such intent can never be mat- 
ter of legal definition. The law therefore refers the weight of 
evidence and the degree of probability to the jury; and the only 
test which can be applied is its sufficiency to produce a satis&o- 
toxy conviction or belief in their minds. 

Deeming the evidence, extrinsic of the deed, sufficient to 
warrant the verdict, it is unnecessary to decide upon the intrin- 
•io validity of the instrument. It is not proposed, therefore, te 

1857.] Link v. Wbight. 287 

notice all tbe oljeeiioiis taken to it. Bat there is one which 
seems deeerving of notice, especiallj as the oonrt may again be 
leqniied to pass npon it; that is, that the schedule zeferred to 
in the deed as containing a description of the property, and as 
being annexed to the deed, was not annexed, nor produced in 
eridence. There certainly should be a description of the prop- 
erty conveyed, either in the body of the instrument or in a 
schedule annexed to it. Without such a description, or some 
SDcfa reference as to render the property capable of being ascer- 
tsined and identified, the deed will not ordinarily operate a 
tiansfer of the title. There must in general be some such de- 
scription or reference to the property, or the deed will be inop- 
erfttive and invalid. But it is immaterial whether it be given in 
the body of the instrument, or in a schedule annexed, to which ref- 
erence is made. The latter is the usual method where the property 
is considerable in amount, or consists of a variety of particulars. 
" When schedules are intended to be prepared, and are referred 
to in the assignment, they should in strictness be prepared be- 
fore the assignment is drawn, or, at any rate, be in readiness, so 
as to be annexed to the instrument before it is executed. In 
some cases, however, where time has not been allowed for the 
preparation of schedales, particularly those of the property 
assigned, an assignment executed without schedules, and only 
referring to them as ' to be made out and annexed ' at a future 
time, has been adjudged valid:" Burrill on Assignments, 247. 
" If possible, these schedules should be completed and annexed 
to the assignmeut before execution; but this is sometimes dis- 
pensed witti. The general rule on this subject appears to be 
this: that the mere omission to annex the usual schedules is not 
in itself sufficient to avoid the assignment In some in- 
stances, and when taken in connection with other circumstances, 
this fact of omission may be considered a badge of fraud. But 
the inference of fraud may be repelled by various circumstances. 
Thus in Massachusetts, where the assignment itself contained a 
proviso that schedules were to be made out as soon as might be, 
the presumption of fraud was held to be removed. So in New 
York, where fall schedules were presented to the court in an- 
swer to a bill filed by a judgment creditor, the inference of 
fraud was held to be repelled. So if the property be described 
in the assignment with sufficient certainty to enable the aF^ignee 
to take possession of it, the omission to annex a schedule, 
though provided for in the deed, will not render the assignments 
void. And if possession accompany the transfer, and the tear* 

288 Lnnr v. Wbioht. [Teza% 

tion be in ftll oih«r respeets fair, tba men maii of a abhediib 
will not render it fEftodnlent. Want of a sohednle is less sua- 
pioions where the whole of the aangnor^e proper^ is conToyed 
for the benefit of all oreditora, than where part of it is oonTejed 
for particular orediton: " Id. 25i-2S6. A mere imperfection in 
the description of the proper^ will not hare the eflBset of inval- 
idating the instrument; and a description in general terms has 
frequentlj been held unobjeotiomible; as where the properlj 
was described as the caigoes of certain TODooln named, without 
invoices, bills of lading, or valuation, and real estate lying in 
Boston, Charlestown, and Maine, without a particular description 
of each parcel, it was held that as the description could be made 
certain by the reference given, it was sufficient: Id. 240 et seq. 
The authorities on this subject are reviewed at considerable 
length by Mr. Burrill's treatise, and the general rules deduced. 
The extracts and references we have given may suffice to indicate 
the law as applicable to the present case. The description of 
the property given in the deed is contained in the following 
clause : ' 'All and singular my stock in trade, consisting of goods, 
wares, and merchandise, and named in the schedule hereunto 
annexed, dated August 24, 1852, marked * B; ' also all my notes 
and accounts due me by debtors, a schedule of which, with the 
names of the debtors, and the amounts due by them, respect- 
ively, is to be made and hereunto annexed, marked ' 0.' " *'A11 
my stock in trade, consisting of goods, wares, and merchandise," 
is certainly very indefinite, but perhaps not so indefinite as to 
be incapable of being rendered certain by proo^. But it seems 
the schedule of the twenly-fourth of August, containing a par- 
ticular description of the property, had been prepared previously 
to the making of the deed, which bears date on the ninth of 
September following. Why the schedule was not annexed does 
not appear. Its absence is certainly a suspicious circumstance, 
and unless explained, or unless there was satisfactory proof of 
what property was included in the general reference "all my 
stock in trade," so that it might certainly appear for what the 
assignee is responsible— whether the property was not greatly 
more than sufficient to satisfy the preferred creditors, and what 
particular property was in fact embraced in the assignment — ^the 
court, it would seem, might well have sustained the motion of 
the appellees to exclude the assignment from the consideration 
of the jury; for undoubtedly it was the right of the deferred 
creditors to have all the security against abuse of the trust by 
the assignee which it was the apparent purpose of the deed to 

1857.] Ldih v. Wbiqht. 289 

mflTord, and to be fully infonned m to the disposition whioh the 
assignor had made of his property. They onght not to be boond 
by any assignment which was effected in soch a manner as not 
to enable them to hold the assignee or tmstee responsible for 
all the property conveyed, or as to needlessly embarrass their 
remedy against him in case of his delinqnency, or which in any 
manner concealed the real transaction, and rendered it, in any 
of its parts, not readily accessible to their observation, and the 
eye of the conrt, in case of the neoessily of a resort to legal pro- 
cess for the protection of their rights. 

It is not perceived that there is anything in the chazge of the 
court which is erroneous, or was calculated to mislead the juiy. 
Instructions will not be deemed erroneous merely because they 
do not embrace eveiy aspect in which the law applicable to the 
case might have been presented to the jury. If the charge of 
the court was thought to be imperfect or incomplete in its pre- 
sentation of the law of the case, it was the right of the parly to 
supply any supposed omission or imperfection by asking the 
proper instruction. Where this has not been done, the mere 
omission of the court to give instructions which would have 
been proper is not error. The word " delay " was evidently em- 
ployed in the charge of the court, and was doubtless understood 
by the jury, in the sense in which it is used in the statute; not 
merely in reference to a question of time, but to the interposi- 
tion of obstacles in the way of creditors, with the fraudulent 
intent to hinder and delay. In that sense, it was properly held 
to invalidate the assignment: Burrill on Assignments, c. 22. 

Without deeming it necessary to examine more particularly at 
present the errors assigned in reference to the ingenious and 
able argument of counsel for the appellant, on the question 
of the validity of the assignment, we conclude that they disclose 
no sufficient ground for reversing the judgment. 

But in the ruling of the court refusing to instruct the jury to 
£nd the value of the property, we are of opinion there is error. 
In order to render the judgment contemplated by the statute. 
Hart. Dig., art. 2818, it is essential that the value of the prop- 
-erty shoidd be ascertained. In taking the bond from the claim- 
jtfit, the sheriff is required to assess the value of the property: 
Id., art. 2814. But this, it seems evident, was intended for the 
purpose of fixing the amount of the bond to be given by the 
claimant. Where the parties acquiesce in the estimate of value 
Adopted bj the officer, it has been held that it might be taken 
4o be the true value, for all the purposes of the rendition and 

Am. Dbo. Vol*. LXX— 19 

290 Linn v. Wright. [Texaa^ 

enforcement of the judgment: Wright ▼. Henderson^ 12 Tex. iS. 
But it has never been snppoeed that the sheriff's estimate of the 
Talue was conclusive upon the parties. The oontraxj opinicmi 
has been entertained: Id. 46. The subject will be found to 
have been sufficiently examined in a case decided at the last 
term at Tyler, Lewis y. Taylor , 17 Tex. 67, upon the construc- 
tion of the seventh section of the statute: Hart. Dig., art. 2820. 

As the case will be remanded, it is proper to notice the objec- 
tion that the issue was not properly made, so as to admit evi- 
dence to impeach the assignment as fraudulent. Although the 
statute provides that the court shall direct the issue to be made 
up, Hart. Dig., art. 2816, yet the form and manner of making it 
are left to the parties. The issue was accordingly made, pro- 
pounding the question, in the most general terms, of the claim- 
ant's right of property in the goods. The only pleading before 
the court, at the time of forming the issue, was what purports 
to be the claimant's answer, in which he did not plead his title, 
or notify the plaintiffs or the court on what title he intended to 
rely to maintain his claim to the property. Not having pleaded 
his title, the plaintiffs could not be required to plead in avoid- 
ance of it; nor could other issues be made than that which was 
made, upon the bare claim of property. The issue was what the 
claimant made it; and under such an issue, the greatest latitude 
of proof must necessarily be admitted. The plaintiffs could not 
be required to anticipate the claimant's evidence of title, and 
plead to it; they are not supposed to have known in what it con- 
sisted. When produced in evidence, they must be allowed to- 
introduce evidence to impeach its validity. 

It does appear that after the issue was made up, the claim- 
ant filed an ''amended answer," in which he pleaded specially^ 
his title. But it does not appear to have been by leave of the^ 
court; nor does it appear that either the plaintiff or the court 
had notice of it. After the formation of the issue under the 
statute, the parties were not bound to anticipate further plead- 
ings; and unless in some manner brought to the attention of the 
court, or the notice of the party in time to reply to or take issue 
upon them, they cannot properly be considered as changing the- 
issues previously formed, or as affecting the right to introduce- 
evidence applicable to those issues. Had the claimant pleaded 
his title in the first instance, or had his amended answer been 
filed before the issue was made up, or had it been brought to tbe- 
notice of the court and the opposite party when filed, the latter 
might have been required to plead specially the matter relied ou 

1857.1 ^^^^ V* Wright. 291 

to invalidate it, in oxder to the formation of the appropriate 
iasaee, and the admiasion of evidence to impeach the title. But 
the case must be viewed as having gone to trial upon the issue 
as made up by the parties under the direction of the court; and 
upon the state of the record, to admit the deed of assignment in 
evidence, and then to have excluded the evidence offered to in- 
validate it, would have operated a surprise, and manifest in- 
justice to the plaintiffs. The objection to evidence, therefore, 
on the ground of its supposed want of relevancy to the issue, was 
not well taken. 

But because the court erred in excluding evidence of the value 
of the property, and refusing to instruct the jury, at the instance 
of the claimant, to find its value, the judgment must be reversed 
and the cause remanded. 

Beversed and remanded. 

AflsiONiCENT IS Void WmcH ooxs hot Sxoitiui Equal DisnuBUTioir 
araoDg the creditors, bat reaenree a portioa to the Mrignor: Pike r. Baoonf 
88 Am. Deo. 299, and notes 263, coUectiDg prior caaes; Andermm ▼. FvUer^ 
36 Id. 290; KuyhndaU v. McDonald, 57 Id. 212, and note 216, collecting 
eases on the effect of retention of possession by vendor after assignment. 

Fraud mat bi Pbovsd bt CntcnifSTAivnAL or preeumptiTe evidence: 
BriKoe v. Brtnutugh, 46 Am. Dec. 108, and noto 120; Burch v. SmUh, 65 Id* 
154, noto 157. The proof in such cases mast be satisfactory: WhiU v. TroUer, 
63 Id. 112, noto 125. Circamstanoes need not be of so conclasive a natars 
and tendency as to ezdnde every other hypothesis than the one soaght to ba 
established, in order to anthoriae a jury to deduce from circamstantial evi- 
dence the condnsion of fraud: Sporki v. Daufaon^ 47 Tex. 146, citing the 
inrincipal case. 

Fbauduluit Iktkht 18 Qnunov fob Jcbt: Briscoe v. Bronaugh, 40 
Am. Deo. 106; BiUfng$ v. BiUii»if», 66 Id. 319; KuykendaU v. McDonald, 67 
Id. 212; Bwck v. SmJUk, 65 Id. 164, and citations in notes to these cases. 
Specific, malidons, covinous, guileful intention to hinder, delay, and defraud 
creditors is a qnestion of fact, to be ascertained upon evidence, as other facta 
are when submitted to a jury: Bcddwin v. Peet, 22 Tex. 717. 

JmwK 18 NOT Bound to Present Case in Every Aspect of which it is 
ansceptible on the evidence: Sidwell v. Evam, 21 Am. Dec. 387; Kratfffnum 
▼• Qrtiaemert 67 Id. 437. Instructions will not be deemed erroneous because 
they do not embrace every sspect in which the law might have been pre- 
sented to the jury: Thompson v. Payne, 21 Tex. 625, citing the principal case. 

It is not Error to Omit to Givr Instroctions not Asked: J/o«f« v. 
Botion and Maine B, B,,G4^ Am. Dec. 381, and citations in note 393. 


of the property by schedules or otherwise, such as will lead to its being ascei> 
iained or identified: Bcddwin v. Peei, 22 Tex. 720; but when the description it 
made certain by some other means then a schedule or other specific desorip- 
tioDt need not be given, however advisable that this be done; Crow v. Btd 
Sher Ob. Bank, 62 Id. 368, all citing the principal 

892 Frankuk v. Coffee. [Texafl^ 

Trust Dno ot Emtibb Oapital Stock of a firm made six montht prior to 
thofar being declared bankmpt, and not recorded, proTiding for the retentioa 
of posseflsion of the property by them, with power to eell in the oidinacy 
ooorse of trade and pay the claims of certain orediton, if not per m Toid on 
the ground of fraad: 8eaU t. A\ford^ 63 Tex. 92. 


[18 TuAii, 418.] 

HomsTiAD Nboissabilt Includbs Idka or Honsx ob BxsiDBircni of some 
sort, and the exemption guaranteed by the law and constitation of Texai 
if baaed npon the suppoBition that there is a homestead in fact; a home 
in which the citixen and his family are or might be domiciled, and that 
it does not consist of land merely. 

Whxbx Hohx, Residxnce, ob Sxttlemxnt has Onox been Aoquiked on 
Isnds it is not necessary that there should be continuous actual occupa> 
tion to secure the homestead from forced sale; an absence temporary in 
its nature, and not designed as an abandonment, will not work a forfeiture 
of the right. 

In Obdxb to Sboitbe Homestead Exemption, it is not necessary that a 
house should be actually built or improvements made upon the land; 
but there must be a preparation to improve, and of such a character and 
to such an extent as to manifest beyond doubt an intention to complete 
the improvements and reside upon the place as a home. 

Ukdxb Statutobt Provisions of Law of Texas, the various articles of 
personal property exempt from execution secured to the debtor must 
exist, and he must be the owner of them, before the benefit of the stat- 
ute can be claimed by him. 

Thb opinion contains the facts. 

J. T. Harcaurt, for the appellant. 

W. R, Jarmon and Fred. Tate, for the appellees. 

By Court, Hemphill, C. J. The appellant, Nicholas Frank- 
lin, was the owner of a tract of land a few miles from the town 
of Lagrange. He had not resided upon the land before bis 
marriage; and since his marriage he bad lived, under some as- 
rangement, at the house of his mother-in-law in the town. Eight 
or ten years ago there was a small cabin built upon the land, 
and a patch of two or three acres inclosed. There was no evi- 
dence that the improvements were made by or for Franklin. A 
witness thought that another person whom be named made the 
improvements. A free negro occupied the cabin for a short 
time. The improvements, viz., fence and cabin, remained on 
the land only one season, and no one would now know that the 
land had ever been improved. The land was sold at sheriff's 

1857.] Franexin v. Coffeb. 293 

Bale, and appellants, Tic., Franklin and his wife, sue to set aside 
the sale, on the ground that the land was the only tract owned 
by them; that it was their homestead, and as snch was exempted 
from forced sale under execution. It was in proof that Frank- 
lin had appeared at the sheriff's sale and given notice that 
whoever bought the land would buy a lawsuit. 

A jury was waived, and the cause being submitted to the 
court, judgment was given for the defendant. 

That the homestead exemption was founded upon principles 
of the soundest policy cannot be questioned. Its design was not 
only to protect citizens and their families from the miseries and 
dangers of destitution, but also to cherish and support in the 
.bosoms of individuals those feelings of sublime independence 
which are so essential to the maintenance of free institutions. 

These are noble objects; and such oonstmotion, consistent 
with the spirit of the provision, should be given, as would pro- 
mote and secure the purpose intended. But the exemption 
guaranteed by law and the constitution is based upon the sup- 
position that there is a homestead in fact, in actual existence; 
that there is a home in which the citizen and his family are or 
might be settled. We are called upon in this suit to extend the 
exemption, and declare that land upon which the owner never 
resided, never used, or attempted or was preparing to use, as a 
home, and which is in fact wild and uncultivated, should be re- 
garded as a homestead, and as such protected from execution. 
We cannot assent to the proposition that this land should be 
considered as a homestead. The proposition would have been 
sound had the constitution declared that two hundred acres of 
land belonging to a head of a family should be exempted from 
forced sale. But such is not the provision. The homestead, 
not to exceed two hundred acres, is declared to be exempted. 
There must be a homestead over which the constitution may 
throw its shield, and not land merely, upon which the owner 
may or may not put his cabin, mansioo, or improvements, and 
claim as a home. 

A homestead necessarily includes the idea of a house for resi- 
dence or mansion-house. On town or city lots it cannot exceed 
a certain value. But on the rural homestead there is no such 
restriction. The dwelling may be a splendid mansion, or a mere 
cabin or tent, open to the winds and rains of heaven. If there 
be either, it is under the protection of the law; but there must 
be a home residence before the two hundred adjoining acres can 
be claimed as a homestead. Where a home residence or settle- 

Franklin v. Coffee. [Teza% 

tudHt has once been aoqoired on lands, it would not be naoessaiy 
that there should be continuous, actual oooapationy to secure 
the land from forced sale. If the dtisEen or family should leave 
in search of another home, the first would remain until the 
flecond should be acquired. If a husband remove his wife 
and family into another county, and without providing them 
a home abandon his wife, she might again resume possession 
of the homestead: FutterUm v. Doyle, 18 Tex. 8. And no 
absence, on pleasure or business, temporary in its nature, and 
not designed as an abandonmeiit, would work a forfeiture of the 
right. Nor would it be necessary to secure the exemption that 
a house should be built or improvements made. But there must 
be a preparation to improve, and this must be of such a char- 
acter and to such an extent as to manifest, beyond a doubt, the 
intention to complete the improvements and reside upon the 
place as a home. 

By law, various articles, in addition to the homeste!«d, are 
exempt from execution; as, vis., furniture, tools of trade, cows, 
hogs, etc. But these must exist in fact before the beneitt can 
be claimed. The law provides that these articles shall be 
secured to the debtor out of his property, but that is only in the 
event that he is the owner of such articles. This rule prevades 
the entire exemption. It becomes operative only when the 
specific articles which it covers are in actual existence as th# 
property of the debtor. 

The rule is reversed where the claim is for the benefit of the 
widow and children out of the estate of the decedent. But that 
has no application where debtors are claiming exemption W their 
own right. 

In this case there was no house or home upon the land. The 
plaintiff had not resided there before or since his marriagn. He 
hod made no preparation, or done no acts, which would evince a 
fixed intention and purpose to select and appropriate the plact 
as a home; and we are of opinion that there is no enor in tb« 
judgment, and that the same be affirmed. 

Judgment aflbmed. 

What OooupAnoir NioiaaART to Ck>V8TiTtJTa Hombstbai): Ckariemr, 
Lambenon, 63 Am. Deo. 457, and note 463; Walien r. Peopfe, 65 Id. 730f 
note to Tajflar v. Harffom^ 60 Id. 606. 

What Absskgb will Work Abandonmxnt or HoimTBAD: SiewaH v. 
Machejf, 67 Am. Dec 906, and caaea dted mpra, 


V. D^tr, 60 Tex. 137; and if the owner does not reside npon tha piemlaei. It 

1857.] Smith u Fkbbt. Z95 

k not hb honiMlMd, Mid li Uabk to be aold at foned Mkt IToOer ▼• IWsil, 
SI Id. 685 (hometiMid gmms); bat it ii not imommry that a boaae be bailt 
or improveaieati made upon tbe land to eecnre it aa a bomeatead; boweyer, 
ibere moat be anoh preparation to improve aa abowa beyond doubt an inten- 
tion to reaide npon tbe pbuse aa a borne, and oomploto the improrementa: 
Mordamd t. BamMturi, UU.280; H.SO. N. B. R. Co. w.WkUer, Id. 611; 
i?anict T. IFMte, 53 Id. 631; 8eoUr. Dyer, 60 Id. 138» aU dting tbe prindpal 

McBB ExMOYAL OF HusBAND AHB Whb from Umd will not operate ^pio 
Jacto aa an abandonment of it aa their bomeatead: Tkoma» v. WUUamB, 50 
Tex. 273, citing tbe principal caaOy which ia cited in Howard v. Marthatt^ 48 
Id. 478, to the pmnt that the c o nal i ttftion of Texaa, when nring the worda 
** homeetead " and " family," did not oontamplate that the partiea ooonpying 
it should be compoeed of a family who were neither rdated by blood nor 
connected by marrii^e. 

Smith v. F^sbbt* 

riB TaxAa,aO.] 

UvDKB Tbcas QriAiVTEt Shkbiw Who Fails to Bannui KxaoonoH aa 
<Urected by law ia prima facie liable to the plaintiif in the ezeontion for 
the foil amonnt of the debt, intexeat, and coata; bot thii ii not oondn* 
aiTely the meaaore of damagea. The officer may avoid the liability by 
proTing a reasonable excuse for hia fkilnre to make the retnm, or that 
the plaintiff baa snatained no injnry. The harden ia, however, apon him 
to ao prove; and where he pleads that the Jodgmant debtor waa inaol- 
▼ent, and that conaaqoently the plaintiiT baa aoatained no injoiy, he may 
be bald liable for nominal damagea and coats. 

Suit against Smith and hia soietiea for the failure of Smith, 
as aheriffy to return two executions in faTor of plaintiflh. Plain- 
tiffs' jadgments were recovered at the spring term, 1863; ezecn- 
tions were issued thereon returnable at the next term. This 
action was commenced in November, 1854, and defendant proved 
that the judgment debtors named in the executions were insol- 
vent, and had no properly out of which to satisfy said judg* 
ments. Notwithstanding this defense, the court gave jnd^ent 
for the plaintiffs. 

J, H. Bob9on, for the plaintiffs in ezror. 
O. W. Smiih, for the defendants in error. 


By Court, Whulkb, J. In the rendition of judgment, the 
court evidently proceeded on the ground that the insolvency of 
the defendants in execution, and the fact that the plaintiffs had 
sustained no injury by reason of the default of the sheriff, did 
not affect their right under the statute. Hart. Dig., art. 1846, 
to have judgment against him and his sureties for the full 

296 Smith v. Peret. [T 

amoiint of the debt, interest, and costs. The judgment caa 
only be supported on the ground that the statute fixes abso- 
lutely the measure of the plaintiffs' damages; and it makes no- 
difference that they have not been injured by the default of tho 
sheriff; they are entitled to their judgment, irrespective of the 
question of injuzy. If this view of the law be correct, it would 
make no difference though after the issuance of the ezecutioi^ 
the debt had been paid. The principle upon which the liability 
of the officer is made to rest would apply as well to that case- 
as the present. The contrary, however, was decided in the 
case of HamiUon v. Ward, 4 Tex. 856. The primary object of 
the statute was held to be to give compensation to the puiy for 
the injury occasioned by the default of the officer; and whero 
no injury had been sustained, it was held there could be no right 
to compensation. Accordingly, it appearing that after the de- 
fault the plaintiff had been paid his debt, it was decided that 
he could not proceed against the sheriff for failing to return the 
execution. And in Underwood v. Eu88eU, Id. 175, it was held 
that although the statute did not, in express terms, admit of 
any excuse for the default of the officer, yet it must be intended 
that a reasonable excuse would be heard; and such excuse was 
there held to acquit the sheriff of liability. The construction 
which these cases have put upon the statute, and which we see 
no cause to depart from in the present case, is, that a sheriff 
who fails to return an execution as directed by law is prima facie 
liable to the plaintiff in execution for the full amount of the 
debt, interest, and costs. That, prima facie^ is the measure of 
the plaintiff's damages. But it is not conclusive; and the officer 
may avoid such liability by proof showing a reasonable excuse 
for his failure to return the execution, or that the plaintiff has 
sustained no injury. The burden of proof is upon the officer; 
and in a case like the present, he may be held liable, at all events, 
for nominal damages and costs, as in the case of an ordinary 
action against him: Sedgwick on Damages, 2d ed., 509. In 
Eamilton v. Ward, supra, we held otherwise; but there the debt 
had been fully paid and satisfied before the proceeding against 
the sheriff was commenced. There was not even an apparent 
right of action at the time of instituting the proceedings, which 
distinguishes that from the present case. 

Where, under statutes similar, perhaps, to ours, the insol- 
vency of the judgment debtor has not been admitted as a 
defense or in mitigation of damages, the party who would pro- 
ceed against the officer for a failure to return the execution ia> 

SmTH V. Fkbbt. 297 

leqnized to institate his prooeeding prompfly; oflierwise lie Im 
barxed of his zemedy. Here it is prodded bj statate that the 
motion against the dieriff and his snietieB may be made at any 
time ^thin five years from the day on which ilie execution was 
returnable: Hart. Dig., art. 2378; and but three days' notice is 
required to be given of the motion: Id*, art. 1846. The only 
seeurity which the officer has, where he has made due return of 
the execution, is that the clerk will do his duty in recording the 
return and presenring the eridences of it. It is not improbable 
that the officer, summoned to answer upon so short a notice, 
years after the alleged default, and after he has gone out of 
office, may sometimes be placed apparently in default when 
really he had performed his duly. The temptation to seek to fix 
Uabiliiy upon him will, of course, be in proportion to the diffi-* 
eulty of collecting the debt from the judgment debtor. In 
Kentucky, where, it seems, the insolvency of the defendant in 
execution has not been admitted as a defense under their statute^ 
the court on one occasion remarked that executions have some- 
times issued against men hopelessly bankrupt, with no other de- 
sign than to take advantage of some possible slip or omission of 
the officer of the law: Per Bobertson, 0. J., in Maury v. Cooper, 
8 J. J. Marsh. 224. We might expect to witness similar abuses — 
and the opportunities for practicing them would be greater here, 
owing to the greater length of time allowed within which to 
make the experiment — ^if the officer were to be held liable at all 
events. Sheriffii should be held to a strict accountability; and 
wherever injury has or may have resulted to a party, from 
neglect of duty by themselves or their deputies, they and their 
sureties should be made responsible. But the officer ought not 
to be subjected to such perils and penalties for mere technical 
defaults, where no one has been injured, as that no discreet or 
judicious man would be willing to take upon himself the re- 
sponsibility of the office. It cannot be supposed that the 
legislature intended, nor does the language of the statute 
require, a construction which would impose such penalties for 
the benefit of those who have not been injured by the derelic- 
tion of the officer. The primary object of the statute must 
have been to afibrd a redress for injuries. It could not have 
been intended to hold out a temptation, and afford the oppor- 
tunity, to those who had sustained no injury, and consequentiy 
could have no real ground of complaint, to speculate upon the 
derelietions of the officer. If the primary object had been to 
impose a penalty by way of punishment, it wotdd not have been 

298 Watkins v. Walker Countt. [Texao^ 

provided that the penalty ahould go to the plaintiff in execa- 
tion, in oases where, not being an injured party, he could hare 
no right to claim it. It proyides that for failing to return an 
«ieontion on the day and at the place the same shall be made 
cetumable, the sheriff ** shall be liable to pay the plaintiff in 
execution the full amount of the debt, interest, and costB.** 
But it does not necessarily result that he shall be so liable at all 
events, although he may have a reasonable excuse, and although 
the plaintiff may have a reasonable excuse, and although the 
plaintiff has not been injured or hindered in the collection of 
his debt. It.goes upon Uie general presumption that the debtor 
is solvent, and that the neglect of duly will result in injury. 
But where the opposite is shown to be the fact, the case does not 
come within the object and policy of the law. If, therefore, 
the question were an open one, we think the construction here- 
tofore placed upon the statute, by the cases to which we have 
referred, the true construction. The present case comes clearly 
within the principle of those decisions; conformity to which 
requires that the judgment be reversed, and the cause will be 
remanded for a new trial. 
Beversed and remanded. 

LiABiUTT or SHKBnrr fob Failobb to RnvBH BxaoimoH: HaU ▼. 
Brooks, 30 Am. Deo. 485; L(n/Kn r. WilUurd, 26 Id. <I29; CommomweaiUk v. 
Moffee, 49 Id. 600, Mid note 513. 

Mjkasurb ov Damaob aoaikst Shekitf fob Non-bbtubn or Ezscunovt 
Svan* V. Oovemor, 54 Am. Dec. 172, note 176, and casea cited ntpra, 

iNSOLVBMOTor Dbtendants IN EzsGTTTiON la not equivalent to "proper 
official diligence ** on the part of the sheriff, and ia not a good defenae for him 
In an action for failore to levy and retom an ezwmtioii: Vamf^n v. WarmeU^ 
S8 Tez. 121, dting the principal caae. 

Watkhib v. Waleeb Gouktt. 

[18 Tkxas, 686.] 

Land and take timber treea for road purpoeea, when the amoont takes 
doea not materially injure or impair the value of the land. 

OwNXB or Land is Bntitlkd to Compensation from Gountt bob Tbuei 
taken from hii land by road overseer to repair road. 

BoAD Ovxbsbkb IB LxoALLT GoNSTiTurKD AoBNT of the coiinty from whlob 
he receives his appointment, and the county ib liable in its oorpomito 
cftpaoity for any acts done by him in the prooer and necessary ozeroisa 
of the authority conferred upon him. 

1857.] Watkihs v. Walkxb Oouhtt. 299 

Pwrsnam aUeging that one Whitehead, after being appointed 
and acting as a road oreraeer in Walker ooontj, entered upon 
petitioner's land without his consent, and out therefrom three 
thousand timber trees for the purpose of repairing a road; that 
ihe trees so cut were of the yalue of twenfy cents each; that the 
land, amounting to sixty acres, from which the trees were cut, 
was mostly Taluable for the trees upon it; and that by the cut- 
iing from it of the trees its yalue had been reduced to fifty cents 
per acre; that its original value was seven dollars per acre. 
Wherefore the petitioner prayed damages in the sum of five hun- 
•dred dollars. There was judgment by default, and a jury 
assessed the damages at twenty dollars. The default was then 
«et aside, and a demurrer and answer filed, the d e m ur rer was 
sustained, the petition dismissed, and petitioner appeals. 

Leigh and Baker ^ for the appellant. 
A. M. Branch^ for the appellee. 

By Court, Wheblib, J. The fact that the juy impaneled 
to asBess the damages, when there was no defense, estimated 
the plaintiff's damage at no more than twenty dollars, renders 
it probable that a vezy different case was presented by the eyi- 
dence from that stated in the petition. But in revising the 
ruling of the court sustaining the demurrer, the matters con- 
tained in the petition must be taken to be true as therein stated; 
and the question is, whether they are sufficient to entitle the 
plaintiff to maintain his action. 

For the appellee it is insisted that the plaintiff has no right 
of action; for, that a private mischief is to be endured rather 
than a public inconvenience; and the right of eminent domain 
gives to the legislature the control of private property for pub- 
lic uses. And the legislaturo have declared that '* when to the 
overseer of the roads it may appear expedient to make cause- 
ways and build bridges, the timber most convenient may be 
used:" Acts 6th Legis. 140, sec. 17. 

It is true that there aro cases in which the rights of property 
must be made subservient to the public welfare. Thero may 
be cases where the right of the public rests upon a principle of 
necessity, which will justify the appropriation or destruction of 
private property without rendering the public liable to make 
reparation. If a public highway be out of repair, the passen- 
gers may lawfully go through an adjoining private inclosure. 
It is lawful to raze houses to the ground to prevent the spread- 
ing of a confiagration. These, it is said, are cases of urgent 

800 Watkins v. Walker C!ountt. [Texa% 

necessity^ in which no action hiy at common hiw by the indiTid* 
nal who sustained the injuiy. And it is true, too, that the 
right of public domain, or inherent sovereign power, giTcs to- 
the legislature the control of private property for public uses. 
Boads may be cut through the lands of individuals without their 
consent; and timber mpy be taken from the adjacent lands to- 
make the necessary causeways and repairs, without the consent 
of the proprietor. But to this right there is, in this state, a^ 
qualification annexed by the declaration in the bill of rights, that 
** no person's property shaU be taken or applied to public use 
without adequate compensation being made, imless by the con- 
sent of such person." And provision has been made by law 
for ascertaining the injury occasioned by establishing a road 
through ctdtivated or inclosed land, and making compensation:. 
Hart. Dig. 854; Acts 5th Legis. 37, 88, sees. 6 et seq. There 
are similar declarations and provisions in the constitutions and 
laws of most of the other states. It is held to rest with the 
legislature to judge of the cases which require the application 
of the right of eminent domain. It may be applied to roads, 
canals, ferries, bridges, etc., provided there be in the assump* 
tion of the property evident utility and reasonable accommoda- 
tion as respects the public. But real property is held by grant 
from the government; and it would be a violation of the con- 
tract, and repugnant to the constitution, to appropriate it to pub- 
lic use without compensation to the owner. This has become 
an acknowledged principle in most of the states, and I presume 
in all whose constitutions contain similar declarations to our 
own. There is no such provision in the constitution of South 
Carolina; and it was there held that the legislature had the 
right to cause roads to be opened, and materials taken for keep- 
ing them in repair, vdthout the consent of the owner, and without 
making compensation. But the court were not unanimous in 
this opinion. Some of the judges expressed dissatisfaction with 
the decision in so far as it claimed for the legislature the power, 
without accompanying its exercise with compensation, and 
especially the delegation of such power to the commissioners 
of roads: State v. Dawson, 3 Hill (S. C), 100. I am not aware 
that such a power is claimed for the legislature in any of the 
states whose constitutions contain the restriction upon the 
power which ours does. 

It is contended by counsel for the appellant in this case that, 
a highway being but a public easement, the freehold remaim'ng 
in the orif^nal owner, and the public having only the right of 

1857.] Watkins v. Walkeb Countt. 301 

passing and repassing, and as incident thereto the right of dig- 
ging earth and felling trees for its repair, this incidental right 
of the public comprehends only such uses of the property of the 
owner of the soil over which the road passes as are necessary to 
the enjoyment of the easement, and ''which in their exercise 
will not interfere with indiyidnal rights, to the material detri- 
ment and injury of private property; and that where the neoes- 
flary exercise of such right without the consent of the owner 
operates to the serious injury or spoliation of private property, 
the bill of rights secures to the party injured an adequate com- 
pensation for the injury sustained." In this we concur with coun- 
ael ; and as presented by the petition, the present is a case which, 
upon this principle, clearly entitles the plaintiff to compensa- 
tion. We do not suppose the legislature intended by the 
provision respecting the taking of timber, to which we have 
referred, the infraction of so clear a constitutional principle; 
or to claim the right to take private property for public use 
without making compensation to the owner. If such were the 
intention, the act in so far is plainly unconstitutional and void. 
But it was probably only intended to protect the overseer from 
becoming a trespasser, in going upon the adjacent lands and 
taking timber for the purposes of the road, where it would not 
be so considerable in amount and value as materially to injure 
or impair the value of the lands from which it was taken. This 
we suppose the legislature might very well do; for the constitu- 
tional restriction was not intended to protect the owner from a 
mere trespass upon his property, but from having it taken from 
him and appropriated to the use of the public vnthout compen- 

It is not necessary at present to ascertain with more precision 
the extent or limit of the rightful exercise of the right of eminent 
domain in cases like the present; or to decide more than that 
the case, as stated, appears to be such as to give a right of ac- 
tion against the county for compensation for the injury which 
the plaintiff claims to have sustained. Should it become neces- 
sary when the evidence is brought before the court, the subject 
may be further more particularly considered with reference to 
the facts of the case. The duly of providing highways for the 
use of the public has been confided to the counties. The over- 
seers of roads are the legally constituted agents of the counties 
from which they receive their appointment, and what they do 
in the proper and necessary exercise of the authority conferred 
upon them, the county in its corporate capacity is responsible 

802 Wall v. Stats. [Texas, 

for. The action appears to have been well brought under the 
statute: Hart. Dig. » arts. 206 etseq.; and we are of opinion that 
the court erred in sustaining the demurrer, and that the judg- 
ment be reversed and the cause remanded. 
Beversed and remanded. 

ihnfXB MAT Sni CouirTr for an injnry doQO to his hmd through Hm actioo 
tf iti ooanty oonmiinioneri' court in estaUlBhing a paUlo road: HamUiom 
O om Ui f ▼• CharrtUt 62 Tex. 603^ citing the principal caac 

Wall v. State. 

[18 TaxAS, 689.] 

Pabtt Indiotsd vor Musdbb is not Emtitlbd to Oontinuavob of hia 

on the ground of the abaence of an important witneaa, where hia affidavit 
for rach continuance fails to show that he had aaked for a anbpoBoa for 
the witness, or that he knew of no other witness by whom he coold prove 
the same &ct8. 


matter of legal right, in order to afford him an opportonity to find per- 
sons who would join him in an affidavit to obtain a change of venue. 

IimiOTMXNT, IN CoMMON-LAW FoBM, Chabgi.n'o Mubdbb to have been com- 
mitted felonioosly, willfully, and of malice aforethought, is sufficient to 
sustain a conviction of murder in the first degree, under the Texas stat- 

Qsnxbal Pbinciplb is, THAT IF Statutb Cbxatino Offknsb IS Refkalcii» 
no further proceeding can be taken under the repealed law to enforce the 
punishment after the repealing act takes effect. 

Penal Code or Texas, in Repbaliko Fosheb Laws and aboUshiug common 
law, has neither changed the law defining the degrees of murder nor the 
punishment to be administered upon conviction Uiereof ; hence appellate 
court may affirm a judgment of conviction which has been regularly ren- 
dered, although the repealing act took effect pending the appeal. 

Indictment for murder in the common-law form. The killing 
took place on the tweniy-ninth of May. An indictment waa 
found, and defendant was arrested on the following day. A 
copy of the indictment was handed to the prisoner on the day 
of his arrest; on June 2d a special yenire was summoned, and 
a list of the jurors handed defendant; on June 8d the case was 
called for trial, and the prisoner produced his affidavit, and 
moved for a continuance^ upon the grounds that he could not 
safely go to trial for want of the testimony of a witness by whom 
he expected to prove that deceased had made threats against his 
life; that said witness had not been summoned because the in- 
dictment had been so recently found; that defendant had had 

1857.] Wall v. Stats. 303 

no time in whieh to subpcdna him. Defendant further asked 
for a continuanoe in order to give him an opportunity to find 
thoee willing to join him in an oath asking for a change of 
▼enne, he not belieying that justice will be done him in the 
county where the indictment was found; and that, because of 
hiB confinement and the short time elapsing since the finding ot 
the indictment, he has had no opportunity to find those friendly 
to him, and upon whose opinion he could rely; also, that he 
belieres that if a continuance is granted, he can find testimonj 
beneficial to him at his trial. The motion for a continuance 
was overruled, and the trial proceeded. In addition to tho 
charge given by the court, the defendant asked that the jury be 
charged that under the indictment as framed the prisoner could 
not be found guilty of murder in the first degree. This was 
refused. The jury returned a verdict of murder in the first de* 
gree. Defendant's motion for a new trial was oyerruled, as was 
that in arrest of judgment, on the ground that the indictment 
was for murder in the second degree. Judgment was then ren* 
dered, and defendant appealed. 

B. O. FnmkLin^ for the appellant. 

James WiUie, aUomey-generat^ for the appellee. 

Bj Court, Whkklbb, J. The application for a continuance 
manifestly showed no sufficient legal ground to entitle the de* 
f endant to a postponement of the trial. It does not appear that 
he had so much as asked a subpoena for the witness. If he had 
done this, after the service upon him of the copy of the indict- 
ment, for aught that appears, the attendance of the witness 
might have been procured. But if the witness had been pres- 
ent, his testimony would have been of no avail to the defend- 
ant. It was proposed to prove by him mere threats of the de-^ 
ceased, which, if proved, would have been no extenuation of the 
crime. Moreover, the affiant did not state that he knew of no 
other witness by whom he could prove the same facts. It is 
scarcely necessary to say he was not entitled to demand a post- 
ponement of the trial, as a matter of legal right, in order to 
afford him an opportunity of seeing if he could not find other 
evidence, or persons who would join him in an affidavit to obtain 
a change of venue. There is no error in the ruling of the court 
refusing a continuance. 

The sufficiency of the indictment to warrant a conviction of 
murder in the first degree under the statute is not an open ques- 
tion* In Oehrke v. State ^ 13 Tex. 568, this court decided that an 

304 Wall v. Statb. [Texas, 

indiotment for murder, in Che common-law form, charging the 
offenee to have been committed feloniously, willfully, and of mal- 
ioe aforethought, was sufficient to sustain a oonyiction of murder 
in the first degree. The question was again earnestly pressed 
upon Che consideration of the court in the case of Whiie y. State, 
16 Id. 206. But the first opinion was adhered to. We might 
eontent ourselves with a reference to these decisions as having 
put the question at rest in this court. But as the objection is 
again urged, it will not be out of place to refer to a few decis- 
ions in our sister states which show that what is the settled 
law of this court is also the well-settled doctrine of other courts 
upon statutes similar to our own, and that it is rightly settled 
upon principle. 

The statute of Tennessee distinguishes the degrees of mur- 
der, and defines murder in the first degree in terms nearly iden- 
tical with those employed in the statute of this state, as any 
'' willful, deliberate, malicious, and premeditated killing:" 
Laws of Tenn. 816; Act of 1829, sec. 8; Whart. Crim. L. 418. 
And in MUcheU y. Slate, 5 Yerg. 340, the supreme court of that 
fltate held an indictment for murder in the common-law form 
sufficient to sustain a conviction of murder in the first degree, 
under the statute. The question was again raised in the later 
case of Hinea y. State, 8 Humph. 697, and it was then said by 
Judge Green, delivering the opinion of the court, that the con- 
etruction which was given to the statute in Mitchell's case, in 6 
Terger, had met with such general approval by the profession, 
that the decision had never been questioned in that court until 
in the case then before them; and that they regard it as the 
settled law of the court, not now open for debate. 

The statute law of Pennsylvania contains a like definition of 
the degrees of murder: Whart. Crim. L. 855; and it is there 
Leld that it is not necessary that the indictment should so de- 
ficribe the offense as to show whether it be murder of the first 
or second degree, and that an indictment for murder in the 
«ommon-law form is sufficient to support a conviction of mur- 
der of either degree. The reasoning of Chief Justice Tilghman, 
in While v. CammonvoeaUh, 6 Binn. 179 [6 Am. Dec. 443], is 
equally applicable to our statute, and shows veiy satisfactorily 
that there is nothing in the statute which requires any change 
in the form of the indictment, but that it is plain none was 
contemplated. The general principle is recognized that where 
a statute creates an offense, the indictment must pursue the stat- 
utory definition in charging the offense, and must char^ire it to 

1857.] Waix v. Stats. 805 

bftTe been done against the form of the statate. Butwheze the 
etatute only inflicts a penalty upon that which was an offense 
before, it need not be so laid, becaose in tmth the offense does 
not consist in a -violation of the statute. The act does not cre- 
ate the crime of mnrder; nor, so far as concerns murder in the 
first degree, does it alter the punishment, which was always 
death. All that it does is to define the different degrees of 
the crime, and regnlate the punishment accordingly. It is 
plainly taken for granted by the act itself that it would not 
always appear on the face of the indictment of what degree the 
mnrder was, because the jury are to ascertain the degree by 
tbeir verdict. But if indictments were to be so drawn as to 
show that the murder was of the first or second degree, all that 
the jury need do would be to find the prisoner guilty in the 
manner and form as he stands indicted: Id. 182, 183. 

The revised statutes of New York contained a definition or 
description of the crime of murder under three classes of cases, 
the first being " when perpetrated from a premeditated design 
to effect the death of the person killed, or of any human being.'' 
And in People v. Enoch, 18 Wend. 169 [27 Am. Dec. 197], the 
supreme court held an indictment charging the offense in the 
common-law form, instead of charging it to have been perpe- 
trated from a " premeditated design to effect the death of the 
person killed," sufficient. The court said: ''We may con- 
cede that this indictment must be sustained, if at all, by charg- 
ing the offense defined in the first subdivision [above quoted], 
because if proof of express malice was not admissible under it 
for that purpose, proof of implied malice would not be. We 
may also concede the general principle applicable to indictments 
founded upon statutes, that it is necessary to set forth all the 
facts and circumstances which constitute the offense as defined 
in the act, so as to bring the offender clearly vdthin the statuta- 
ble offense." The same principle applies where an offense at 
common law has been raised by statute by increasing the pun- 
ishment, as where the benefit of clergy has been taken away, or 
a misdemeanor has been raised to a felony. But the applica- 
tion of this principle to the case is not admitted, for the statute 
has not altered the common law. The offense of murder as de- 
fined in the statute was such before the statute. There is no 
new offense created by the statute, nor a new punishment an- 
nexed to an old offense. The case therefore does not faU within 
the rule, nor the reason of the rule, supposed to be violated by 
the form of the indictment. The court conclude: ** The rule 

Am. Dao. Vox.. LZX— ao 

306 Wall v. State. [Texaa^ 

that the indiotment should bring the offense within the vord^ 
of the statute declaring it is applicable only, in strict termSy to 
cases where the offense is created by statnte, or where the pun- 
ishment has been increased, and the pleader seeks to bring tb& 
prisoner within the enhanced punishment. It is a clear propo- 
sition that an approved form of indiotment at common law is 
good for the same offense, though declared by legislative enact- 
ment." The case was taken by writ of error to the court of 
errors, and the judgment of the supreme court affirmed by the 
unanimous opinion of the court: People v. Enoch, 18 Wend. 15^ 
[27 Am. Dec. 197 J. Other authorities might be cited, but these 
will suffice to place it beyond question that the decision of this 
court in Gehrke's case, and White's, settled the law rightly upon 
principle and authority. 

There is and can be no question of the sufficiency of the evi- 
dence to warrant the finding of the jury; nor is there any ques- 
tion of the correctness of the charge of the court. There is 
manifestly no error in the judgment. 

But it is now insisted that this court cannot affirm the judg- 
ment, by reason of the repeal of the law defining the degrees of 
murder, and the abolition of the common law, effected by the 
penal code, arts. 609, 612, 612 a, which went into force on the 
first of the present month, since this appeal was pending. The 
general principle is admitted, that if the law which created the 
offense is repealed, after the repealing act takes effect no further 
proceeding can be taken under the repealed law to enforce the 
punishment. The general principle which has been invoked^ 
qualified by the condition that the repealing statute substitutes 
no other penalty, and does not otherwise provide, is enacted in 
the code, art. 15. The principle is held to apply as well to the 
proceeding upon appeal, in the appellate court, as to the courk 
having original cognizance of the offense; and as well where 
the repeal took effect after the removal of cause to the appellate 
court as before: United States v. The Schooner Peggy, 1 Cranch, 
108. But admitting the general principle in all its force, its 
application to the present case is expressly provided against and 
prevented by the repealing act. The fourteenth article of the 
code, to which we are referred, at the same time that it declares 
that when the penalty for an offense prescribed by one law is 
altered by a subsequent law the penalty of the latter shall not 
be inflicted for a breach of the former, also declares that " in 
every such case the offender shall be tried under the law in. 
forco when the offense was committed, and if convicted, pun«^ 

1867.] Wall v. State. 807 

iflhed under that law; except that when by the proYision of the 
second law the punishment of the offense is ameliorated, the 
defendant shall be punished under such last enactment, unless 
he elect to receive the penalty prescribed by the law in force 
when ihe offense was committed/' Again: article 18 declares 
" that no offense committed prior to the taking effect of thia 
code shall be affected by the repeal therein of existing laws; 
but punishment shall take place as if the laws repealed had re- 
mained in force; except that when the punishment shall have 
been mitigated by the code, its provisions shall apply to and 
control any judgment to be pronounced after its taking effect, 
for any offense theretofore committed; unless the defendant elect 
the former punishment." 

The only question, then, for the court to inquire of, iA, 
whether the punishment for the offense of murder has been 
ameliorated or mitigated by the provisions of the code. And it 
is dear that it has not. The punishment is, as heretofore, by 
death, or confinement in the penitentiary, "according to the 
degree of atrocity or the circumstances of extenuation in each 
particular case." It may be death, or solitary confinement in 
the penitentiary for life, or confinement in the penitentiary to 
labor for a term of years, not less than three nor more than fif- 
teen: Pen. Code, art. 612 a. It could not be more or less under 
the former law. It cannot, therefore, be said that the punishment 
has been ameliorated by the code. The only alteration in the 
punishment effected by the code is that it prescribes as an inter- 
mediate punishment between death and confinement in the 
penitentiaiy for the longest period under the former law — i. e., 
fifteen years (Hart. Dig., art. 2517)— solitary confinement for 
life. But that is not substituted in the place of either death or 
confinement in the penitentiary for a term of years. It is pro- 
vided to give the jury more ample scope to apportion the pun- 
ishment according to the nature and heinousness of the offense; 
by a just estimate of which, it is made their duty to regulate the 
punishment from that of death to confinement in the peniten- 
liary to labor for a term of not less than three years: Pen. 
Code, arts. 609, 612. Whether the punishment shall be death 
or the milder punishment is still made to depend on the 
" degree of atrocity or the circumstances of extenuation in each 
particular case," preserving the same extremes as the former 
law. There is, therefore, no abatement or mitigation of the 
punishment; the object of the former law in defining the degree 
of murder was the same as the present, that is, as tiie code de» 

208 Wall t;. State. [Tezaa^ 

^fares, to ** regulate the pumahment aooording taa jtist estiinate 
of the heinousness of the offense/' By that h^w, the jury fonnd 
the degree by their verdict, and the law annexed the penalty; 
1>y the present law, the jury are not to find the degree expressly, 
but only as their Terdict shall manifest their estimate of the 
heinousness of the offense by the punishment imposed. What 
the law required the court to pronounce upon the finding of the 
jury, the juiy are now to declare by their verdict. But in either 
■case, the jury must decide upon the degree of guilt, the punish- 
ment to be regulated according to their estimate of it. They 
formerly found the degree; they are now to find the punish- 
ment; and it is but a different mode of arriving at the same 
result. The code, therefoi)), can in no sense be said to ameli- 
orate or mitigate the punishment. That implies that the pen- 
alty is reduced, or in fact taken away, a diminution of the 
punishment which the provisions of the code do not propose 
or effect. 

Finally, the code of criminal procedure, tit. 5, sec. 2, de- 
clares that " no action, plea, prosecution, or proceeding in any 
criminal case now pending, or which may be pending when this 
act takes effect, shall be affected by the repeal of the laws under 
which it originated, but the same shall proceed in all respects 
as if no such repeal had taken place; except that all proceed- 
ings had after the time this act takes effect shall be conducted 
according to its provisions." 

There is nothing in the provisions of the code to prevent the 
court from proceeding to judgment, in cases similarly situated 
to the present, as though it had not been passed; and it mani- 
festly was not the intention or within the contemplation of the 
legislature that anything therein contained should have that 
effect, or relieve the court from the duty of affirming a judg- 
ment of conviction which had been rightly rendered according 
to law. We are of opinion, therefore, that the judgment be 

Judgment affirmed. 

Party Moving CoNTunTANCB of criminal oaose on ine ground of his in- 
ability to BubpoBna a witness, by reason of the recent finding of the bill and 
hlB close confinement since his arrest, must show that he has certain witnesses, 
giving their names, and must state what he expects to prove by them in order 
that the court may determine whether or not the testimony wonld be material: 
Hoberts v. State, 58 Am. Dec. 628. 

Indictment Chabgino Statutobt Ckimb not in the words of the statate^ 
but in equivalent words, is good: Ben y. SteUe^ 58 Am. Deo. 234; and for aa 
instance of a common-law indictment held proper under a statute, see PeopU 
V. iJnoch, 27 14. 197. 

1857.] Qbassmeter v, Bexsok. 309 

Thb fbikcipal oask is ottkd in Mearim t. 8UUe^ 1 Tex. App. 624; Ckapm 
▼. State, 7 Id. 88, and Walker v. SUOe, Id. 257, to the point that whero a 
■tatpte defining a crime and prescribing its pnniehinent ia repealed, pending 
a proeecntion for that offense, or pending an appeal for a conviction thereof, 
no pnniBhnient can be inflicted for the commission of the crime, although done 
at a time when the repealed law was in effect; in Jaciaon t. State, 4 Id. 205| 
to the point that an application for a continuance of a criminal case will be 
refused when grounded on the want of an absent witness, and it is shown 
that diligence has not been employed to secure the attendance of the witness 
as required by the statute; in Jennings ▼. State, 7 Id. 354-356, to the point 
that the statute did not change the common-law definitioo of murder, there- 
fore an indictment in the oommon-law form contained ereiy subatantial 
requisite; in Dinhin$ y. State, 42 Tez. 253, it is diattngaislied on the lasT 
Doint mentioned siipro. 

6ra88M£yeb V. Beeson. 

[18TSXAS, 7U.] 

CouBX HAY1NO JuBiSDicTiON TO Rendkb Dxckxb, it is cootdadvm as to tha 
qoestiona adjudicated therein, and cannot be reopened to examination or 
diaonssion unless obtained by fraud. 

Whithib Dkjbub is Obtainkd bt Fbacd or not, a party in interest may 
acquiesce in and abide by it, and after a space of fifteen years a stranger, 
not a party or privy, nor claiming under a party in interest, cannot im* 
peach it» especially when there is no evidence of fraud requiring the court 
to leave that question to the jury. 

Fboov must bi Produced to Wabbant Coubt in Sbttiko aside Judo* 
MBNTSy and annulling titles to land on the ground of fraud. It must not 
be done upon mere surmise or suspicion, nor upon eTidenoe which doea 
not necessarily, naturally, and reasonably tend to that conclusion. 

Texas Ck>UBT or Bquttt has Power and Jubisdiotion to Decbbe Spboifio 
Pebiobmahce and partition, and such decree vests the title to the land 
conveyed in the party named therein. The statute has deprived tha 
court of none of its powers in this particular. 


AxAHOUOH Pabtition Made ukdeb Decbeb by commissioners appointed 
for that purpose is invalid, st^ the decree without partition vests in the 
party named therein the exclusive title in the land set apart and con- 
veyed to him by it, and constitutes him a tenant in common M-ith the 
original grantee, and as such he has sufficient title to enable him to main- 
tain an action of trespass to try title against a stranger. 

RxMOVAL or Gbantsb fbom Texas to one of the states of the Mexican 
oonfederacy is not an abandonment of the former, within the inhibition 
of the thirtieth article of the colonization law of March 24, 1825. 

to try title to half ft league of land. The land ia 
oontroyeiBy was granted to one Eennelly, who afterwards gave 
Graasmeyer a bond to make him a title to one half of the land 
as soon as the laws of the country would permit, Seyen yeari 

810 Qbassheyeb v. B££80N. [Texas. 

afterward plaintiff institated suit on his bond for title and par- 
tition, alleging in his petition that Kennelly was " absent in 
parts unknown," and praying that service be had on one Scran- 
ton, as cuiutor of the estate of Kennellj. Scranton answered, 
alleging ignorance of the matters contained in the petition, and 
demanded proof. Publication was ordered, and was made for 
the period of six weeks, requiring Kennelly to appear at the 
next term of court; when the trial came on, Kennelly not ap- 
pearing, one Lewis was appointed as his attorney ad litem; and 
after proof of the allegations in plaintiff's petition, he had judg- 
ment for title and partition. Commissioners were appointed to 
make such partition, which they did, and their report was con- 
firmed by the court; whereupon Scranton made title to the upper 
half of the league to Grassmeyer. These proceedings took place 
in 1840 and 1841; in 1864 this suit was instituted and tried; at 
which trial the court instructed the jury that the proceedings 
mipra were null and void, and Beeson had judgment. This 
judgment was, however, on appeal reversed, and the cause re- 
manded. At the second trial of this case, Beeson filed an 
amended answer, in which he alleged that the land had become 
vacant by its abandonment by Kennelly; further alleging title 
in himself for the land in question by virtue of a valid land cer- 
tificate; also that the decree for title and partition in the pro- 
ceedings first above mentioned was fraudulent and void, stating 
specifications of fraud at length. The plaintiff asked the fol- 
lowing instructions, which the court refused: 1. That the pro- 
ceedings first above mentioned were valid, and vested the title 
to the land in Grassmeyer; 2. That the decree in that case can- 
not be questioned by any one but Kennelly, or those who claim 
under him; 8. That the length of time elapsing since those 
proceedings were had is evidence of acquiescence on the part 
of Kennelly and plaintiff to the decree rendered therein, and 
that such acquiescence would validate any irregularity which is 
apparent therein; 4. That though there was an irregularity in 
the partition of the land, still the deed from Scranton to Grass- 
meyer vested the title in him^ and was sufficient to make the 
partition valid. There was verdict and judgment for the de* 
f endant. Motion for a new trial overruled, and plaintiff appeala. 

W. 0. WM and G. W. SmUh, for the appeUant 
J, H, Bobsan^ for the appellee. 

By Oourt, Wheeueb, J. The questions now presented, whkk 
were not determined upon the former appeal (18 Tex. 534), and 

1857.] Qrassmeter v. Bebson. 811 

^which are deemed to require notice^ arise upon the obligationi 
of fraud, and the effect of the decree for speoifio performance 
4Uid partition.' 

Having heretofore determined that the court had jurisdiction 
to render the decree, it is perfectly clear that it ia conclusiTe 
of the questions adjudicated therein, and that they are not now 
open to examination or discussion, unless the decree was obtained 
by fraud: Shannon y. Ihylar, 16 Tex. 418. Howerer obtained, 
it will not be questioned that it was competent for the party 
^hose interest was affected by it to acquiesce in and abide by 
the decree if he saw proper. If he is content, as it seems he 
tias been for the space of fifteen years — and the eyidence leaves 
little room to doubt that he must have been aware of it — ^it would 
fieem that a stranger, one who was not a jMurty or privy, and who 
•does not claim under the party, or pretend to have any right or 
interest to be affected by the judgment, cannot impeach it. But 
if he can, there was no evidence of fraud, which required the 
court to leave any such question to the jury. If the plaintiff's 
attorney did draw up the answer of the curator for him, that, in 
an action of this nature, which was only intended to perfect an 
equitable into a legal title and have partition, which the curator 
had no reason to suppose the absentee would have opposed if 
present, was no evidence of fraud. The curator was under no 
obligation or necessity to employ counsel and litigate the case, 
or to make opposition further than to require the plaintiff to 
'establish his right by proof. The answer he adopted had that 
^ect, and that was sufficient, especially as the absentee was also 
jnepresented by an attorney of the court. There is no pretense 
that the latter colluded with the plaintiff to <l|fraud the absentee, 
or that he was wanting in fidelity to the pturty he represented. 
There is as little ground to impute a fraudulent design to the 
ourator. When it is considered that Kennelly has since been 
in the country, and there is reason to believe he must have known 
of this judgment, and he has not complained of it, it cannot be 
deemed that the evidence affords ground for even a suspicior 
that it was obtained in fraud of his rights. If after so great b. 
lapse of time, and under circumstances like these, the judgments 
of the court and the titles and rights depending upon them were 
liable to be set aside and annulled upon such evidence as this, 
there would be no security for titles or property. Instead of 
heing protected by the certain and fixed principles of the law, 
they would be liable at all times to be defeated by the prejudice, 
^him, or caprice of a jury, on some such fanciful and imper- 

812 Orassmeteb v. Bebson. [Teza& 

oeptible ground as a sospicion of latent fraud, which was not 
susceptible of proof. There must be some proof to warrant the 
setting aside of judgments and the annulling of titles on the 
ground of fraud. It must not be on mere surmise or suspicion » 
nor upon evidence which does not necessarily, or naturally and 
reasonably, tend to that conclusion: 1 Story's Eq. Jur., sec. 198; 
1 Hovendf n on Frauds, 24. 

In respect to the effect of the decree, and the partition of the 
land in pursuance thereof, it unquestionably was valid and ef- 
fectual to vest in the plaintiiff the titie to the part conveyed to 
him under and in obedience to the decree. The court acted 
in the matter of decreeing a specific performance and partition 
in virtue of its powers and jurisdiction as a court of equity, and 
not by virtue of an authority conferred merely by the statute. 
As a court of equity, it possessed full power and authority to 
decree partition, and provide for carrying its decree into effect, 
by appointing commissioners and directing a conveyance: 1 
Story's Eq. Jur. , c. 14, sees. 656 et seq. The statute, Hart. Dig. , 
arts. 2617 et seq., was doubtiess borrowed from the legislation 
of states where, by reason of the inadequacy of the remedy af- 
forded by the common-law writ of partition (for until the stat- 
ute of 81 Hen. YIII., c. 1, and 82 Hen. YIII., c. 82, no writ 
of partition lay at law for a joint tenant or tenant in conmion)^ 
legislation was necessary to enable parties to obtain partition in 
a court of law. But the giving of the remedy by statute in a 
court of law has never been deemed to take away or in any de- 
gree to abridge the original and inherent powers and jurisdio- 
tion of the court of chancery in respect to the partitioning of 
estates. The statute prescribes a procedure which parties maj 
adopt if they see proper, but it is not obligatory. Our courts,, 
possessing the powers of courts of chancery, may proceed to ad- 
minister relief, upon the principles of equity, as fully and com- 
pletely as a court of chancery in England could do, without th& 
aid of the statute. The foundation of the jurisdiction of equity is 
not in the statute, but in the judicial incompetency of the courts 
of common law to furnish a plain, complete, and adequate rem- 
edy; and in complicated cases the statute would afford a verj 
inadequate and incomplete remedy. It is usual to provide in 
the decree for the commissioners to report, and upon confirma- 
tion of their report, to direct conveyances to be made; but it i» 
competent for the court to direct the manner of making the par- 
tition, and to decree the making of the conveyances, without tbe 
necessitj of a report and decree of confirmation. The court may » 

1857.] Obassmster v. Bebson. 813 

in ihe fiist instuioe, direct oonveyanoes to be made in pnxsoance 
of the allotments of the oommiasioners, if that be deemed proper. 
There can be no donbt that the powers of the court are adequate 
for this purpose; and if the decree should be erroneous, none 
but a party or privy, or some one whose interest is in some way 
affected by it, could complain, or take advantage of the error. 
The decree cannot be collaterally impeached by a stranger. The 
decree and partition vested in the plaintiff the exclusive right 
and title in the land set apart and conveyed to him under and 
in pursuance of the decree, upon which he was entiUed to main- 
tain his action. 

But if the partition had been invalid, still the decree, without 
partition, vested in the plaintiff an undivided interest in the 
land, and constituted him a tenant in common with the original 
grantee; and that was a sufficient title to eiukble him to main* 
tain his action against this defendant. We have heretofore de» 
cided that one tenant in common may maintain trespass to try 
titie against a stranger: Crqfl v. Rains, 10 Tex. 520. 

It is scarcely necessary to say that the removal of the grantee 
from this to another of the states of the Mexican confederacy ia 
1833 was ux^t an abandonment of the country, within the inhi- 
bition of the thirtieth article of the colonization law of the 
twenty-fourth of March, 1825. 

The plaintiff's was a good and valid tiUe to the land for which 
he sued; and there was nothing in the matters of defense urged 
against it to defeat his right to a recovery. 

The judgment is reversed, and the cause remanded for a new 

Beversed and remanded. 

JuDGMXBT or Court having Jitbibdictioh of the sabject-matter of tho- 
•nit and of the penon is not impeechAbla coUatenlly, unless it may be for 
fraud: Homer v. 8UUe Bank <^ Indiana, 48 Am. Deo. 355. That a judgment 
obtained by fraud will be vacated, see Dial v. Farrow^ 36 Id. 267; but that 
it cannot be impeached collaterally on that ground, see Horner v. Fiah, 11 Id. 

OpBNrao JuDonNT AS Fraudulent: Note to Whiting v. Johnson, 14 Am. 
Bee 633. 

IHecRn CANNOT BB Impkachkd for Fraud after twenty-five years' ao* 
qniesoenoe by party: Pendleton v. OalUnoay, 34 Am. Dec. 434; bnt the ml^ 
that a judgment cannot be inquired into or reversed in a collateral proceed* 
ing, except for fraud, admits of an exception in favor of parties not privies t» 
it who would otherwiBe be without remedy: CaldweU v. WaJUerSf 58 Id. 602. 

VkAim MUST BB EsTABUSHXD by proof; it will not be presumed: Hem^ 
V. /o&nson, 66 Am. Deo. 458, note 473. 

814 Alexander v. Miller's Ex'r& [Tezaa^ 

JcTBisDicnoK or Equitt Df Pabtition 18 UHDOdrrxD: Romqf t. (Tbln^i^ 
M Am. Dec 427; Rutherford t. Jones, (M> Id. 655. 

JuDOMKNT IN Pabtitiok IS CoNCLusiTB: Note to Niedff V. Boj^ 40 
Am. Dec. 640; Herr r. Herr, 47 Id. 416. 

DflOBU or Coir&T hatutq Jubisdiction is bindiitg on tiie partiM to it, 
And oonolndes all inquiry into the legality of the original contract on which 
it was rendered: MUU t. Alexander, 21 Te£ 162, citing the principal case, 
which is again dted in Hatch v. Oarxa, 22 Id. 188, to the point that the qnea> 
tion of fraod in a contract of bargain and sale is as completely oonolnded by 
Judgment as if it had been set up as a defense to the suit, and cannot be made 
the ground of avoiding or impeaching the validity of the judgment or of a 
claim for equitable relief in a collateral action. 

Ths pkincipal CASS is cited in Moke A Bro, v. BraehU, 28 Tez. 446* to 
the point that a judgment in favor of or against 9k feme covert suing as ekfeme 
eoU, or in favor of or against a dead man, is manifestly erroneous, as soon as 
the fact appears; but such judgment is voidable only, and not void, when the 
iaot does not appear by the record. See also Milam Co. v. Soberteon, 47 Id. 
233; Taylor v. Stuad, Id. 464. Such judgment may be set aside by writ of 
«rror coram noUe: Cfiddinge v. Steele, 28 Id. 755, all citing the principal case. 


fraud; it must be established by evidence that naturally and reasonably tends 
to that conclusion: Oiddinge v. Stede, 28 Tex. 758, citing the principal casew 

Tenant in Common mat Bjbooveb a specific portion of a tract of land 
from a trespasser, for the seisin of such tenant extends to the whole tract, 
«nd an equitable title will sustain the action: Hooper v. HaU, 90 Tex. 158; 
and such tenant or a joint tenant may maintain either trespass or ejectment 
in his own name against a trespasser or wrong-doer: Preeley v. Holmes^ 33 Id. 
478; Alexander v. GilUam, 39 Id. 236; and he may recover the whole tract: 
OromweU v. HoUiday, 34 Id. 469; Sowers v. Peterson, 69 Id. 221; so a /ens 
^ole owning an undivided interest in the land may allege such title and main- 
tain her action against the wrong-doer: Hutehhss v. Ba/con, 46 Id. 414; and in 
the case of a tenant in common, this was held to be the rule, although his pe- 
tition failed to show that he was only a part owner: StovaU v. 
Id. 380. All the above cases cite the principal case. 

Alexakdeb v. Milleb's Exeoutobs. 

[18 TSXAB, 898.] 

AuTEBATiON IN Levt Made befobe Adyebtisemsnt or notice, or befbra 
anything is done under the levy as first made, will not invalidate it; 
nor is it an objection to the levy as finally made that it was made at the 
instance of the attorney of the plaintiff in the execution. 

Batifioation or Lett as Finally Made is a wsiver of any valid objeotioa 
to the manner in which it has been made. 

Notice or Judicial Sale is notice of preceding proceedings therein. 

MiSDsaoBiFTiOK IN Dati OF Entbt OF JUDGMENT shown to havo been a 
mere clerical error is not material, when the execution describes the judg- 
ment in every other particular except the date of its rendition, tfana 
sufficiently identifying it as the judgment upon which the exeon t ioQ 

1867.] Alexander v. Miller's Ex'rs. 815 

DsacBiPTioir nr Lkvt, that " bt Vibtits or the within ezeeotion, I haT« 
levied on fourteen labors of the Gilleland leagne of land, or to much of 
said tract as will aatiafy the within execution, oommenoing at the north- 
west oomer,*' and that the " tract to be offered [for aale] to ooounence 
at the north-east corner thereof,'* is sufficient to identify the land. 

Dbsobutioh ov Land in Dked as beiko ** a certain tract or parcel of land 
lying and situate in the county of Colorado, being a part of the Oilleland 
league, and consirting of fourteen labors, which said tract, seised as 
above, oommenoes at the north-east comer thereof,** followed by deaorip- 
tion by boundariee, is sufficient to identify the land. 

AonoH to Bet aside a sberiff's Bale and deed. Both partiea 
claim title to the land in dispute from one Lewis, irho at the 
time of the le^y was the owner of said tract. Defendant claims 
by virtue of a judgment, execution, and sheriff's deed. It was 
in evidence that one Walker was attorney and agent for the de- 
fendant, who not being present at the sheriff's sale, said Walker 
bid off the land for him; that after the first levy was made. 
Walker, being upon the land of Lewis, saw some rich prairie land 
^hich was not included in the first levy; wishing it indudedt 
he afterwards changed the levy for that purpose, the first levy 
commencing at the north-west comer of a certain tract, the sec- 
ond naming the north-east comer of the same tract as the place 
of commencement; this second levy was made by Walker shortly 
after the first, and signed by a deputy sheriff. On the day on 
-which the land was to be sold. Walker being importuned by 
liewis for a postponement of the sale, he consented. Lewis at 
once wrote a letter, the purport of which was that in considera- 
tion of the postponement granted, he, Lewis, waived all legal 
objection to the levy, and that the land might be sold without 
appraisement or advertisement if the judgment creditor's claim 
was not paid before the time agreed upon for the sale. Walker 
then testified that the execution on which the levy was made 
was not present at any conference which he had with Lewis; that 
be did not know of Lewis's having seen it; that the second entry 
or levy was made on the execution before Lewis wrote the letter; 
that the land was sold at the time agreed upon, and that he pur- 
chased it for Miller as his agent; Uiat the sheriff sold enough 
land to satisfy the execution, said land beginning at the point 
named in the last levy; and that when the amount of land so sold 
was ascertained, the deed was made under which Miller claims. 
It was objected, on the part of the plaintiff, that the execution 
purported to have been issued on a judgment rendered on 
the ninth of September, whereas the judgment introduced in 

816 Alexandeu V, Miller's Ex'r& [Tcxii.% 

evidence was rendered on the sixth of that mouth. Other facts 
are in the opinion. 

J. W. Harris, for the appellants. 

O, W. Smiih, and J. B. and O. A. Jones, for the appellees. 

By Court, Whxeleb, J. If the alteration in the levy was 
made, as there is no reason to doubt that it was, before adver> 
tisement or notice, or anything done under the levy as firsl 
made, it can have worked no injury to the defendant in execu- 
tion; and it is not perceived that there is anything in the mere 
fact of such alteration that should invalidate the levy. Nor is 
it perceived that it is any objection to the levy as finally made 
that it was at the instance of the attorney of the plaintiff in ex- 
ecution: Bryan v. Bridge, 6 Tex. 137; Sydnor v. Boberts, 13 Id, 
698, 622 [65 Am. Dec. 84]. But if there was any valid objection 
to the levy, it was expressly waived by the defendant in execution 
before the sale. It is evident from his letter of the sixth of June 
that he was fully apprised of the levy and advertisement, and he 
thereby expressly ratified the levy '* as made;" waived all legal 
exceptions to the proceedings under the execution, and author- 
ized the sale of the land ' ' so levied upon," etc. The alteration in 
the levy had been previously made, and the defendant in execu- 
tion doubtless knew how the levy then stood. It was his busi- 
ness to know, when he undertook to ratify the levy as made; 
there was nothing to prevent his knowing, and it would be un- 
reasonable to suppose he did noi know; doubtless he did know 
the precise state of the case. Clearly, his ratification of the 
levy was a waiver of the objection, if any valid objection to the 
manner in which the levy had been made did, in fact, exist. 

It is objected that the defendants, when they purchased, had 
no notice of this letter. They however had notice of the levy 
and sale. This point was fully determined when the case was 
first before us: Miller v. Alexander, 8 Tex. 36. Notice of the 
sale was notice of the proceedings therein. The defendants had 
notice of the levy, and we have heretofore decided that vraa 
prima facie legal and valid: MUer v. Alexander, 13 Id. 497 [65 
Am. Dec. 73]. There is therefore nothing in the objection of 
want of notice. 

The misdescription in the date of the entry of judgment is 
conclusively shown to have been a mere clerical mistake. It 
must have been such, because there was no such judgment ren* 
dered on the ninth, but it was on the sixth of September the 
judgment was rendered. The ninth was the day of the adjourn* 

1857.] Alsxandsb v. Miller's Ex'bs 817 

meni of the court, and tbat accounts for the mistake. The ex* 
mention describes the judgment which was rendered on the sixth 
Accurately in cTeiy particular, except the date of its rendition; 
«nd that was not material, as the judgment was otherwise sufEl- 
•ciently identified. There could be no mistaking the judgment 
on which the execution issued. 

The only renudning objection to the judgment which is 
<leemed to require notice is that now first taken in this court, 
IiaTing reference to the identity of the land which was leried 
on and sold. It is objected that the lery and sale were of land 
off of the north-east comer of the Gilleland league, and not oil 
of the tract or parcel of the league previously conveyed by Gille- 
land to Lewis, the defendant in execution. 

This objection was not taken in the court below. There was 
no question then made as to the identity of the land actually 
aold and conveyed l^ the sheriff's deed. It has evidently al- 
ways been well understood by all concerned that it was the 
north-east comer of the tract conveyed to Lewis, out of the 
league, and not the north-east comer of the league that was 
levied on and sold. The objection now taken rests on the de- 
scription in the levy and deed; particularly the latter. On an at- 
tentive considertion of the terms of the levy and deed, we are 
of opinion that the objection is barely plausible, not sound. 
The levy is in these words: *' By virtue of the within execution, 
I have levied on fourteen labors of the Gilleland league of land, 
or so much of said tract as will satisfy the within execution, com- 
mencing at the north-west comer." The subsequent entiy is: 
** Tract to be offered to commence at the north-east comer 
thereof." The ** tract " evidently has reference to the " fourteen 
labors off of" the league; and the *' north-east comer thereof' 
as evidently has reference to this tract, and not, as is supposed, 
to the north-east comer of the Gilleland league. This seems 
plainly enough to be the meaning of the terms in which the 
levy is expressed. The language of the deed is as little suscep- 
tible of the construction contended for. It is as follows: "I 
have seized and taken, of the lands and tenements of the said 
Ira B. Lewis, a certain tract or parcel of land, lying and situate 
in the county of Colorado, being a part of the Gilleland league, 
and consisting of fourteen labors, which said tract, seized as 
above, conmiences at the north-east comer thereof," proceeding 
to describe the boundaries of the six hundred and eighty-two 
acres sold off the tract of fourteen labors to satisfy the execu- 
tion. It is perfectly plain that the land " seized and taken "as 

818 AxEXANDER V. Miller's Ex'rs. [TeXAV 

{he property of the defendant in execution is the ** tract or par- 
cel" of land which was " a part of the Gilleland league/' and 
that the " tract or parcel " is that which is described as ** con- 
sisting of fourteen labors; " and that when it is added, ** which 
said tract, seized as above, commences at the north-east comer 
thereof," it means the north-east comer of the " said tract " of 
fourteen labors, as plainly as if it had been so expressed. The 
apparent ambiguity arises from the reference to the league, by 
way of description, of which this tract is a part. When duly 
considered, there is no real ambiguity or difficulty as to the 
identity of the land levied on and sold. It is yery evident from 
the pleadings and evidence in the case that none of the partiea 
concerned have been misled by any want of certainly in the levy 
and deed; they have never given the construction to the levy 
now contended for. The reference upon a former apjieal to 
{he comer of the league was an inadvertence. This question 
was not then made or considered. The description of the land 
is not as certain and clear as it might have been, but it is suffi- 
ciently so to leave no room for doubt or mistake as to the land 
really intended. Upon the whole, we are of opinion that there 
is no error in the judgment, and it is affirmed. 
Judgment affirmed. 

Ibbbouulbttibs in Lkvy, adTertLBement, etc., may be waived by defendant 
In execution before sale: Miller v. Alexander, 65 Am. Dec 73. 

Vabianci of Execution from Judgmbnt does not make the execation 
aa absolute nullity: MeCoUum v. Hubbert^ 43 Am. Dea 66; the exeontion 
most pursue and be warranted by the judgment, but misstating the date 
of the judgment in the execution, if it describes and identifies it so as to ren- 
der sure the authority upon which it issued, is sufficient to invest the sheriff 
with authority to sell, and in a collateral proceeding will sustain the sale: 
SproU V. Reid, 66 Id. 649, and notes to these cases. 

Instances of whbbe Description in Lett has been Held SuFFidBm: 
OUtnan v. Thompson^ 34 Am. Dec. 714; Parker v. Siocm, Id. 619; Briganee v. 
Ervnn*$ Lesue, 67 Id. 779, and notes to these cases; contra, see Id., and STay- 
tor's Lesaee v. Cozart, 40 Id. 666, note 666. 

Description in Deed Sufficient to Pass Title: See Melmn r. Proprietors^ 
88 Am. Dec. 384; Oourdin v. Z>avM, 46 Id. 746; Dow v. JeuM, Id. 371, and 
notes to these cases. 

Where It is Proved that Levy was Made on Land Pointed out by the 
judgment debtor, that he was present at the sale thereof and assented to it, 
that the purchaser went into and remained in possession, these facts are suffi- 
cient to show a ivaiver of any irregularities in the levy and sale: WUaoh v. 
Smith, 60 Tex. 370, citing the principal case, which is cited in Bttd^m v. Wal- 
let, 63 Id. 219, to the point that a sheriff's deed is not void, aoqoired nnder 
an execution sale, when it is proved that the judgment recited in the exeontton 
ia the same as the one rendered against the party in the suit. 

1857.] Petebs v. Phillips. 81 » 

Petebs v. PmTiTiTTa 

(19 TsxAfl. TO.] 

OowiT OovmfB JuxisDionoH to Evtobob SpJBomc PiBfoiiiAiica of 
VmamDKsr^B Gontbact to Cohyxt Land in a nut against hit adminia- 
tntor, under the Texas statate, is special, and eziits only where there is 
a bond or a oontract in writing, disclosing all the tenns of the agree- 
inent» in analogy to the memorsadom required by the statute of frandub 


its terms is snffioient to confer jnrisdiotioB npon the county ooart» under 
the statute^ for the spedfio enforoement of the oontnetk although the 
contract is not produced. 

Appbal from a jadgment of the district court reyersiiig tha 
judgment of the county court in favor of the plaintifb, upon a 
petition for the specific performance of a deed or bond in writ* 
ing, made by one Byers, deceased, to conyey certain land to the 
petitioner and one John S. Peters, since deceased. The bond 
was produced in CTidence in the county court, and was for the 
penal sum of four hundred dollars. The condition recited the 
previous tnalring of a contract between the purchasers and the 
decedent, wherel^ the former undertook to locate and clear 
out of the land-ofBoe certain land to which the decedent was 
entitled under his headright, to pay all expenses, to pay the 
decedent the sum of two hundred dollars and give their notes 
for the balance, in consideration of which it was recited that 
the decedent was bound to convey to the purchasers a cer- 
tain part of tiie land to be taken off of some line of said tract 
or tracts as it may be located. The condition proceeded : * * Now, 
if, upon running the boundary line between the United States 
and Texas, it should so turn out that said Byers did not reside 
within the limits of Texas at the declaration of independence, 
and therefore not be entitled to said league and labor of land as 
a citizen of Texas, then and in that case the said John 0. Byers 
shall well and truly refund and pay back to the said Peters the 
said sum of two hundred dollars with lawful interest thereon, or 
return the note given for the same, then the above obligation to 
be void, else to remain in full force and effect.'* The other facts 
sufficiently appear from the opinion. 

8. F. Moseley and J. J, PeUrs^ for the appellant. 

Jl H HUb, for the appellees. 

By Court, Hemphill, 0. J. The main question in this cause 
is, whether the instrument offered in evidence and designated in 
the margin as a title bond is such a bond or written agreement 

820 Petebs v. PHiLLipa [Texaa» 

to make tiUe to property aa would, under article 1162, give joria- 
diction to the county court 

The jurisdiction of that court over the subject-matter is ape- 
eial, and can be exercised only where there is a bond, or the 
agreement to make tiUe is in writing. Now, literally, this in- 
fitrument is not a bond to make title; but it recites fully the 
terms and conditions of a contract to that effect, and by which 
Byers, the intestate whose representatives are charged as defend* 
ants in this suit, undertakes and binds himself, on the perform- 
ance of certain conditions by the Peterses, to convey to them one 
thousand two hundred and eighty acres of his headright league 
of land. By a dose construction, it might be held that this 
instrument was not of a character to give jurisdiction under the 
article cited; but although it would seem that the object of giv- 
ing the county court authority was to provide a cheap and expe* 
ditious mode of enforcing plain agreements, about which there 
was litUe or no dispute; and although the resort to such juris- 
diction, where the case like the present is severely contested, is 
deemed very injudicious, yet it would seem that the same rules 
to ascertain what may be included within the scope of the terms 
** bond" or '* written agreement" should be applied to the con- 
atruction of the article that are recognized with reference to the 
promise or agreement or memoraudam of a contract being in 
writing under the act to prevent frauds and perjuries. This act 
in its first section, article 1451, declares that no action shall be 
brought to charge a person upon a contract for the sale of lands, 
unless the promise or agreement, or some memorandum thereof, 
ehall be in writing, and signed by the party intended to be 
charged, or by his agent lawfully authorized. Now, it has 
always been held, under statutes of similar iiuport in JBngland 
and in the other states, that the written evidence required by 
the statute need not be comprised in a single document, or 
drawn up in any particular form. It is sufficient if the contract 
can be plainly made out in all its terms from any writings of the 
party or from his correspondence; that the place of signature is 
not material; that the signature of a party as a witness to a deed 
which contained a recital of the agreement was held sufficient 
where it appeared that he knew of the recital: Welford v. Beeeely, 
1 Yes. sen. 6; 1 Greenl. Ev., sec. 298. That the receipt for the 
purchase money may constitute an agreement within the statute: 
1 Sugd. Vend. 115. A receipt stating that the vendor had re- 
ceived of the vendee a certain sum, being on account of a planta- 
tion on the Cypress, sold to him this day for two thousand two 

1857.] Fetsbs v. Phillips. 321 

Imndred dollars, payable in different insfallmentSy as per agree- 
ment, was held sufficient compliance ¥rith the statate of frauds: 
<Josack y. Descoudres, 1 McCord, 425 [10 Am. Dec. 681]. The 
receipt for the purchase money, in part or in the whole, has in 
jdl cases been held sufficient where it specifies the terms of the 
•contract, names of the parties, amount of the purchase money, 
«tc. ; and the reason is, that there is so much of the contract in 
writing that it can be enforced without the aid of parol testi- 
mony: Brickman y. Brickman, 6 Blackf. 21; PiU^s Tnaiees y. 
Viley, 4 Bibb, 466; Kay v. Card, 6 B. Mon. 100. 

The instrument in this case shows clearly, and it appears 
fully by way of recital, all the terms of the contract by which, 
on the one hand, the Peterses undertook to locate and clear out 
of the land-office the headright certificate of Byers; and he, on 
the other hand, bound himself to conyey to said Peters twelye 
iiundred and eighty acres, in two sections of the said tract or 
tracts of land, as the same might be located. The names of 
the parties, the terms of the agreement, the conditions and 
coyenants, are fully stated; and there is no necessity of resort 
to parol testimony to ascertain any of the essentials, or, it would 
«eem, any of the particulars of the contracts. Byers states that 
he is bound by the contract to conyey the land. This concludes 
bim and his representatiyes. The instrument showed sufficient 
«yidence of the contract in writing to haye authorized a decree 
for specific execution had suit been brought in the district 
•court; and we are of opinion that although there is some differ* 
«nce between the terms employed in article 1162 and those used 
in the statute of frauds, yet that any such written evidence of a 
contract to sell property as would authorize its specific execu- 
tion in the district court under the statute of frauds will be 
sufficient to authorize the county court to decree its execution. 
The policy of both of the provisions is, that there should be 
lyritten evidence of the contract, and that it should not be sup- 
ported by parol; and where the former is offered, the object is 
^iceomplished; and the law in either case must be held as satis- 
fied. Upon the whole, we are of opinion that the contract was 
legitimately within the cognizance of the dounty court, and that 
the suit cannot be abated for want of jurisdiction. This point 
lyas not raised by the parties; but being one of jurisdiction, its 
<3onsideration and decision could not be avoided. 

This instrument, or bond, and the patents — the land being 
located in two tracts — ^were filed several months after the pro- 
49eeding8 were commenced in the county court. By whom they 

iM. Dso. Vol. LZX— 21 

322 PEmts V. PHILLIF& [Teza% 

were filed does not appear. The counly court in its judgment 
recites £hat there was satisfoctoiy written evidence of the con* 
tract, and decreed for the plaintiffB; on apjieal to the district 
court the judgment was reTersed, but on what grounds does 
not distinctly appear. From the affidavit on the motion for a 
new trial, it might be presumed that in the opinion of the courk 
the evidence was insufficient in this, that the contract to which 
there was reference was not produced. If bo, there was error, 
as the evidence in this particular was, as we have shown, suffi- 
cient proof of the terms of the agreement. 

But it does not appear that any evidence was offered by the 
plaintiffs of the performance of the conditions, locating the land, 
etc. The record does not show from whose possession the 
patents came. The presumption from the argument of coun- 
sel is that they were filed by Peters; and there may have been a 
further presumption below that as he had the patents in pos- 
session, he must have paid the charges and expenses. 

But there being no evidence in relation to these facts, we da 
not feel authorized to enter the judgments which should have- 
been pronounced below, and the judgment is therefore reversed 
and cause remanded for a new trial. 

Beversed and remanded. 

SrscxFio PsRFORMAUCs OF Deckdkht's Comtracis: See Ckeat^g Appeal, 
45 Am. Deo. 668; Moore v. /tte Randolph 29 Id. 208; Qretn v. Bro^ftM, » 
Id. 166; RMin» v. McKnighl, 45 Id. 406; Johnrnn y, Hvbbdl, 66 Id. 773» 
and notes. In Btdlim v. Campbell, 27 Tez. 655, the principel oMe ia cited t» 
the point that a contract of a decedent to convey land is not soch a claim af 
leqnxres presentation to the administrator. In OvU/ord v. Love^ 49 Id. 745^ 
the case is cited to the point that the jurisdiction of the coonty court for the 
specific enforcement of such a contract is special, and can be exercised only 
where there is a bond or written contract. It is again cited at pages 746 and 74^ 
of the same case, and ejcplained. And at page 733 it is cited to the point that 
the heirs of the decedent need not be joined in a soit against his administrator 
to enforce his bond to convey. 


See Old Colony R. R, Corp. v. Evams^ 66 Am. Deo. 394; Ive» v. Hasard^ 67 
Id. 500, and notes. To the point that each a memorandom most be so oertaUa 
that specific performanoe can be enforced, the principal ease is cited in Joksnf^ 
mm V. OrangeTf 61 Tez. 46. 

1857.] Price t;:WiLKT. 828 

States v. WASHmoTON. 

[19 Tkxm» 138.] 

IvDionnifT POR AmiAT kot Allioino Fioutimo in exprait temu, Ual 
charging that the defendants, with force and arnia, at a oertain time moA 
place, were unlawfully assembled together, and being to onlawinUy as- 
sembled and arrayed in a warlike manner, then and there did maLti «« 
•ffiray» to the great terror of diners goods eitiwos, eta, is safficieot 

Appeal from a judgment quashing an indictment for an af&aj. 
The substance of the indictment is sufficiently stated in the syl" 
tabus. Upon a motion to quash, on the ground that there was 
no allegation of any fighting, the district attorney amended the 
indictment by inserting an explicit allegation upon that point. 
The defendants excepted to the amendment as matter of sub- 
stance. The court sustained the exceptions and quashed the in« 
dictment, whereupon this appeal was brought. 

James Willie^ aJUomey-general^ for the appellant. 

By Court, Wheeleb, J. The indictment is in accordance with 
precedent, English and American: Wharton's Precedents of In- 
dictments, 489. It was BO adjudged and approTed by the unani- 
mous opinion of the supreme court of the republic, pronounced 
by Judge Ochiltree, in the case of Saddler t. BepubHc^ Dallam, 
610. There was no occasion for the proposed amendment. The 
indictment was unquestionably good and sufficient. 

Judgment reversed and cause remanded. 

Berersed and remanded. 

AfnuT» What CoimnTum: See ffawtmB v. State^ 08 Am. Daa 517* 

PmoE V. Wiley. 

[19 Texas, 142.] 

Amsbtdvent to PETinoir Substitutino Principals ab PLAiiniPTS, In aa 
iction hroaght by their agent, affords the defendant no groand of oh]ectioii« 
miless he waa thereby deprived of some auhatantial right. 

BuBiri ' i T UTi oN or Principals in AcnoN bt Aoxnt is not ^Iakino Nkw 
Party, where it ia done with the consent of the agent, and apon hia 
allegation that he has no interest in the note sned on, but is merely the 
agent of the new plaintifib. 

FaoioiPALs cannot bb Substitutbd as Plaintiits in Action bt Agent 
AiTXB Agent's Death, where the fact that he snes for their use does uul 
appear from the petition, hut the suit must be revived in the name of hia 
representatives, and the prindpala claiming to be the real parties ia 
faiteirest may contest their rights with the repreaentativea and claim 
Judgment in their names, if the defendant is not thereby deprived of any 
substantial defense. 

824 Pbice v. Wiley. [Texas, 

Ebbob to reyerse a judgment obtained against the plaintiff in 
error as defendant in an action on a note. The case is stated in 
the opinion. 

J. H, Parsons f for the plaintiff in error. 

Lewis and Flanagan^ for the defendants in error. 

Bj Court, Hemphill, C. J. This suit was brought by Charles 
Keith as plaintiff, against Joseph H. Price, the plaintiff in enx^r, 
as defendant. 

Subsequently, and after a plea of general denial by defendant, 
there was put in a pleading which is styled an amended petition^ 
in which the plaintiff, by leave of the court, comes and amends, 
and says that Charles Eeith (that is, the plaintiff himself) is but 
the nominal plaintiff in the case, and never had any interest, 
ownership, or possession of the note sued on, but was merely 
the agent of L. M. Wiley & Co. The person of the pleader then 
suddenly changes; Keith vanishes, and L. M. Wiley & Co. con- 
tinue the averments, alleging that the notes are theirs, etc. 

To this amended petition the defendant excepts, on the ground 
that it attempts to introduce an entirely new party into the 
suit, and pleads also a general denial. The exception was over- 
ruled. This has been assigned as error, but upon ,the facts 
which are alleged in the amended petition, there was no error 
in overruling the exception. The plaintiff, Charles Keith, in 
the amended petition, admits that he was not the owner of the 
notes, but that he held them merely as the agent of L. M. Wiley 
& Co., and Wiley & Co. pray to be substituted as plaintiffs. 
This was but a substitution of the principals for the agent, with 
the consent of the agent himself, and was not properly the mak- 
ing of a new party. But if the principals were new parties, the 
defendant could not object on that account alone, unless he 
were thereby deprived of some substantial defense, nor could 
he, on the admission of new parties, be subject to the costs 
thus far in the suit expended: Henderson v. Kissam, 8 Tex. 46. 
There was no error in overruling the exception to the amended 
petition, as it stood upon its allegations. 

But when the judgment is examined, its recitals show a state 
of facts under which L. M. Wiley & Co. were made parties 
plaintiffs, quite different from that to be inferred from the 
amended petition. The judgment shows that Keith was dead 
before L. M. Wiley & Co. attempted to introduce themselves as 
parties. The amended petition leads to a different conclusion, 
viz. , that Keith was alive, and introduces his principals, who then 

1867.] Price v. Wilet. 325 

take up the avermentB. The judgment commenced as follows: 
'' This day come the parties by their attorneys, and the death of 
the plaintiff being suggested, L. M. Wiley h Co., by attorney, 
make themselves parties plaintifb/' etc. The manifest inference 
is, that L. M. Wiley k Co. were made parties after the death of 
Keith; and though the exception to the amended petition was 
properly sustained, yet the question is, whether under the facts 
as they truly existed, and as they must haye been known to the 
court, as appears from the judgment itself, L. M. Wiley k Co. 
should have been allowed to come in as parties plaintiffs, and 
have the judgment entered in their name against the defendant* 
Charles Keith was the sole plaintiff in the original petition. On 
his death the suit abated, unless his legal representatives either 
came in Toluntarily or were brought in and made parties plain- 
tiffs: Hart. Dig., art. 697. Had Kdth saed for the use of L. If. 
Wiley & Co., and had this appeared from the petition, the suit 
would not have abated by his death, but might have been prose* 
cuted by the beneficiaries to judgment: Hart. Dig., art 701. 
Their right would then have appeared of record. But after the 
death of a plaintiff ^ng for himself, the suit can be revived 
and continued only in the name of his legal representatives. 
Persons claiming the real ownership of the notes can, if they 
choose, contest their rights with such representatives, and if 
established, may claim judgment in their names, and this in the 
same suit, provided such change of parties shall not deprive de- 
fendant of a substantial defense to. which otherwise he would 
have been entitled. 

Judgment reversed and cause remanded. 

Beversed and remanded. 

AMXNDBCXim SuBSTiTcnNO New Vasooa PLAnmrv: See HMer v. P^ 
(en, 68 Am. Deo. 620, and note. Where a eoit has been Inatifcoted by admin* 
istraton for the nae of a woman, she is the real plaintiff, and an amendment 
rabetitntiiig her name as plaintiff is not strictly the making of a new party: 
Martd v. Somen, 26 Tex. 558, citing the principal case. 

Abatbmxzit or AenoK bt Death of Pabtt: S«ie P§tt8 v. Ison, 56 Am. 
Dec. 419; Caufon v. CampbelTs Adm*r, 66 Id. 184, and notes. If a suit be in- 
stituted in the name of one party, purporting on its face to bo for the benefit 
of another, then, on the death of the nominal plaintiff, the suit may proceed 
in the name of the beneficiary, without reviving it in the name of the repre- 
sentatives or heirs: Moore v. Rice, 51 Tex. 292; otherwise where it does not 
so purport: Si^se r. MaUeh, 54 Id. 360, both citing the principal case. 

Ths fbinoipal oasb is also cited oeiteilallt to the point that a party 
who is or may be affected by a judgment, if he does not appear, must be brought 
In by prooess, in Bryan v. Lund, 25 Tex. 

Shelton v. Berbt. [Texafl^ 

Shelton v. Berbt. 


IknwAYn n Volitiitart Oath Biduokd to Wbooq^ telua bcftm mm$ 
aiatlioriiad officer, and oeriifiad by him. 

ArwwAvn mrar mm ur WBiniro» but hud hot bb Siqhbd lijr tba de- 

▲ihdavit to Claim AOAnm Dbobpbht'b Estatb, hot Pubfobtoio to bb 

BY Owhbb of the cbiih or by hia agent, and not stating the depooenfa 

'means of information, affords no Jnstifioation for the rejection of the 

^elalm by the administrator, nnleas he puts his objection on that gnmnd. 

IiBBOB to Vdrene a judgment for the defendant in an action 
against an administrator to recover a claim rejected by him on 
the ground that it was barred by the statute of limitations. On 
the trial, the authentication of the claim was objected to, on 
grounds sufficiently appearing from the opinion. The objection 
was sustained, the defendant had judgment, and the plaintift 
brought error. 

J. M. Crockett^ for the plaintiff in error. 
J. E, Cravens^ for the defendant in error. 

By Court, Whbelbb, J. An affidavit is defined by Blackstone 
to be ** a Toluntaiy oath before some judge or officer of the 
court, to evince the truth of certain facts: " 8 Bla. Com. 804. In 
practice, it means " an oath or affirmation reduced to writing, 
sworn or affirmed before some officer who has authority to ad- 
minister it:" Bout. Law Diet., tit. Affidavit; Burrill, Id.; 
Tomlin, Id. It must be in writing. Such is the requirement 
of the statute: Hart. Dig., art. 1158. But neither the statute 
nor any general principle of the law requires that it be signed by 
the deponent. That does not enter into its definition, nor is it 
essential. It is sufficient that it be made before an officer au- 
thorized by the law to administer it, and that he reduce it to 
writing, and certify officially to the fact of its having been made 
before him. The affidavit in the present case was therefore suf- 
ficient. The objection that it was not made by the owner of the 
claim is not tenable. Where the administrator would reject a 
claim because it is authenticated by the affidavit of a person who 
does not purport to be the owner thereof, or the agent of the 
owner, and does not state the means of information of the de- 
ponent, he must make that the ground of his rejection of the 
claim: Dunn v. SubleU, U Tex. 621; JIanaeU v. Oregg, 7 Id. 230. 
Hero he placed his rejection upon a different ground. 

1857.] Bo88 V. Smith. 827 

We are of the opinion that the cbim waa well aathenticated» 
«nd that the court emd in niclnding it, forwhioh the judgment 
mnat be xereraed and the canoe xemanded. 

Berersed and xemanded. 

AvFnuTRs, S viwwuac T ^a^ OsirsBAix.Tt 8m iSbm wAm ioMapmrUBtmk 
of Jfcmoe, 42 Am. 0eo. 68. Ad affidAvit mut be ttkm by anthorind offi* 
«K-: WyaU v, J^k$^ 43 ToL 166; and moMt be certified by bim: iforrw ▼ 
€ia% 2 Tex. App. 603, both dting the princspel oese. 

Pboov of Claim AOAOiflT DaonmiT's Hbtatb: See JS^v* ▼• MaHU^ 41 
Am. Deo. 103. In WaUen r. Prt$Udge^ 80 Tex. 66, 74, it wm held that en 
adminietrator rejectiDg a cUim for insufficient anthentioation, if his obJeetioB 
goee to the person making the affidavit, most state that objeotioii ia his memo- 
vandam of rejection, or he cannot rely on it when saed: bat thai this mis 
does not apply where his objectioa goes to the words or form of the affidavit, 
^distingnishing the principal case. The court say: "It is insistsd by the 
«oansel for the appellee that if the claim was rejected on aoooont of Insnffi. 
«ient anthentication, this reason should baye been giren in the indorsement 
of the administrator, so that it coold have been properly anthenticated amd 
again presented, and that having failed to do this, and rejected it generslly, 
lie is preclnded from relying on that reason now, bat mast litigate it on its 
merits. We are referred in support of this position to HommU v. Oregg, 7 
Tex. 22S; Melntoth r, Oreemoood, 16 Id. 116; Dunn v. SubUU^ 14 Id. 621; 
^helUm r. Berry, 19 Id. 164; and A\ford v. Cochrane, 7 Id. 488. We have 
carefully examined these cases, and find nothing in any of them to support 
the position assumed by counseL The result of these cases is, in substance, 
that where a daim agsinst an estate is anthenticated according to the require- 
ments of the statute^ but by the affidavit of a person who does not purport 
to be the owner thereof, or the agent of the owner, if the administrator 
would reject the daim on that ground, he must state such cause specially 
in hii rejection, and cannot raise it for the first time when sued for the estab- 
lishment of the claim. The rulings of the court In these cases we believe 
to be entirdy correct The statute has not declared by whom the affidavit 
ahall be made; it only provides that the claims when presented shall be ' ac- 
companied by an affidavit in writing.' It is left to the judgment and dis- 
cretion of the administrator to decide whether the affidavit is made by the 
^proper pereon who is cognisant of the fact: Ihum v. SMtU, 14 Id. 621. No 
0uch discretion is left with the administrator with referenoe to the affidavit 
cf authentication. If this be wanting in any of the essential requintes pre- 
aeribed by the law, he is forbidden to allow the claim; and if he does sHow it 
onder sndi droomstaaoes, his act Is expresdy deolsnd to be of na fono or 

Boss V. Smith. 

[19 TXXAS, 171.] 

and notsB pajraUe to bearer, or payable to order, and indorsed in blank. 


not saffiolent evidence of title to sustain an aotioQ on the nate by oae not 

S28 Boss V. Smith. [Texas, 

Affbal from jndgment against the appellant in aa actioi^ 
brought by him on a note. The facts appear from the opinion. 

Jf. Casey, for the appellant. 

W, Sledman, for the appellee. 

By Oourt, Hbkphzll, 0. J. The appellant, who was plaintiff 
below, broaght snit against the appellee on the following note: 

V $132.10. Janoaxy 1, 1855. 

'* One day after date, I promise to pay to the order of O. Yin- 
oent one hundred and thirty-two dollars and ten cents, value 
received, with interest at the rate of ten per cent per annum, 
from maturity, until paid. Jambs E. Smith." 

The note was read to the jury as evidence, against the objec- 
tion of the defendant that the plaintiff had not offered any proof 
of ownership. But in the charge, the court instructed the juiy 
that the plaintiff was not entitled to recover, unless they were 
satisfied from the proof that the plaintiff was the owner of the 
note; and that possession of the note was not sufficient proof of 

The note being the only evidence offered, the juxy found for 
the defendant, and the plaintiff appealed. 

The note was not indorsed specially to the plaintiff, nor was 
it indorsed in blank; and the only question is, whether the mere 
possession without proof of a bona fide assignment or transfer, 
either by parol or writing, was prima/acie evidence of owner* 

The only instruments in which the law recognizes the property 
as passing, like coin, with the possession, are those termed nego- 
tiable, and which are transferable by delivery; viz., billsand notes 
payable to bearer, or payable to order and indorsed in blank. 
The legal right to the property secured by such instruments 
passes by delivery, and the possession is pritna/acie evidence 
•of right in the property. Such instruments pass by deliveiy 
from hand to hand; and though they may have been lost or 
stolen from the true owner, yet the possession of the holder is 
prima/acie proof of right, and if he be a bona fide transferee 
for value, his title will be perfect, whether the one from whom 
he received the instrument had any title or not: MiUer v. Bace, 
Smith's Lead. Cas. 258, notes; Oreneaux v. WheeHer, 6 Tex. 523; 
Story on Prom. Notes, sees. 43, 196. 

But such is not the rule with roference to instruments not 
negotiable, or which do not pass the legal right by delivery. A. 

1867.] Ross V. Smith. 329 

person not a parly to sneh note mnst show by what right 
he claiiDB to recover from the debtor, or in other words, that he 
holds under a bona fide assignment^ valid in law, from the owner 
of the note. 

The defendant, by his counsel, has iiisisted, and shown from 
niuieroas authorities, that a chose in action may be assigned 
verbally or by deUvezy, as well as in writing: Heath ▼. Hall, 4 
Taunt. 826; Jones ▼. Wiiter, 18 Mass. 804; Dunn v. SneU, 15 Id. 
485-487. An assignment of a debt may be by parol as well as 
by deed: 2 Story's Eq. Jur., sec. 1047. A delivezy of a chose 
in action for a valoable consideration is sufficient, and passes 
the title: Briggs y. Dorr, 19 Johns. 96. He also insists that to 
make the parol assignment good against the debtor, it is not 
necessary that the assignee should give notice of the assignment 
to the debtor. 

It is no doubt true that the assignment of a debt does not, in 
equity, require the assent of a debtor, although it may be im- 
portant to the assignee that such notice should be given, or 
otherwise the rights of third persons may intervene to his preju- 
dice: 2 Story's Eq. Jur., sec. 1057. To give an action at law, 
it seems that the debtor must consent to the agreed transfer of 
the debt; but in equity it is otherwise: Ex parte South, in re 
Bow, 8 Swanst. 892; TOMis v. George, 5 Ad. & El. 114. There 
is no doubt that an assignee, by parol or delivery, of an unne- 
gotiable note i%antitled at law to sue the maker in the name of 
the assignor, and in equity to bring suit in his own name. 

The only question is, whether the mere possession of such in- 
strument will authorize the holder to bring suit, or whether he 
must prove the fact of delivery or transfer for a valuable or 
other sufficient consideration: Harris v. Clark, 2 Barb. 94; 
B. 0., 8 N. Y. 93 [61 Am. Dec. 862]; Story's Eq. Jur., sec. 607. 
And it seems clear that he must prove that he came honestly 
and for a sufficient consideration into possession. Where the 
legal right to the debt, secured by a negotiable note, passes by 
delivery, the law, for the benefit of commerce, has recognized 
the property as passing with the possession; and that posses- 
sion is consequently prima fade evidence of title. But this is 
an exception to the rule by which property is proved in personal 
chattels, and it does not extend to the possession of notes which 
are not negotiable. The possession of such note, without other 
proof, does not give the holder the right ^ > judgment on th« 
note: Merlva v. Manning, 2 Tex. 861. 

Judgment affirmed. 

330 MuBRAT V. Able. [Tezais 

PoosBOOir or Nora or Box as Btxdxnob ov Trlb: See KOkoU t. 
MaHhi, 61 Ain. Deo. 327; PicheHB ▼. Tarhoroitgh*$ Adm'r, 02 Id. 728; IToy 
▼. Richardmm^ 63 Id. 760; PettM ▼. iVoii<» Id. 778; Conteett ▼. Amipkfry. 68 
Id. 611. Mere poeaesBion of % note ipkyM» to beerer, nnlees there ia eH- 
denoe to impeach the holder's right» is soffident proof of title to enaUe him 
to sne thereon: Rider ▼. Ditmd^ 38 Tez. 624. And a note pajrable to otder 
and indorsed in blank is in the same oategory, being deemed payaMa to 
bearer: Joknmm ▼. MUckeU^ 60 Id. 214. Bat mere poss o s ri on of a non-^i^go- 
tiable note, without more, is not snffioients MerriU ▼. SmitK 22 Id. 64; Boffs 
Bekn t. HUl^ 88 Id. 241. The principal case is eited in eaoh of tho abova 


[10 Tkzai» 33S.] 

/■in>0B*8 LuN MAT BB Entobced bt Tbanstbbbb OB NovB payable to 
bearer, given for the pnrcbaee price of land, where the lien la le aerre d 
in the note^ 

Ebbob to reyerae a judgment for the plaintiff in an action on 
certain notes. The facts are stated in the opinion^ 

J. T. Murray, for the plaintiff in error. 

By Court, Bobebts, J. Able sues for the use of Mills & 
Jockusch, on notes given to Able in the purchase of land, and 
the vendor's lien on the land is expressly reserv^ in the notes. 
The petition seeking to enforce the lien is excepted to, because, 
the notes being transferred for value, and being payable to 
bearer, the lien did not pass with the notes to lidiUs & Jockusch. 

It has been decided that a party holding a n^otiable note, 
under a written indorsement from the payee, has acquired and 
may enforce the vendor's lien: Moore v. Raymond^ 15 Tex. 554. 
At this term of the court the same has been decided in favor of 
one holding a note payable to bearer. 

This having, until lately, been considered a doubtful ques- 
tion, and having been raised and relied on below, judgment will 
be affirmed without damages. 

Judgment affirmed. 

Vbndob's Lun, whbthbb Passes to Assiokbb ob Tbabsfsbbb or Notb 
given for purchase of land: See Briggs t. ffiU, 38 Adl Dec. 441; KwMy v. 
Wmkam, 46 Id. 193; WdOwm v. WVUaimB, 52 Id. 427; Chnner ▼. Banka, Id. 
209; ifoore v. Anders^ 60 Id. 651, and notes. The principal case is cited in 
WhiU y. Dawns, 40 Tex. 232, and Flanagan ▼. Chuhman, 48 Id. 244, to the 
point that unless a contraxy intent appears, the assignment of a note for tha 
purchase of land carriea the vendor's lien. 

1867.] Mills t;. Howeth. 831 

TTinsnaE TauonnM or Dibt Qkxwmau^t Tbairdbbs Limii BaooBaQ 
It, we l^ewmn t. PnaUm^ 44 Am. Deo. 021; TVrry ▼• Wcod§^ 46 Id. 274; 
J8o6oi0 ▼. ITdditaid; 48 Id. 541, and notee. The priaoipel eMe fa eiftid to th« 
jKmit genaoUy thol moli tnaiffar doee oeny tho ]kB» fai Cfmmtm t. JtfOi 
i>aaid; 46 Tex. 800. 

Mills t;. Howeih. 

vno of the defendant in exeoation, in a proceeding to enfone the «XBon« 
tion againat pfop er ty alleged to have been frandnkntly tnnefeRod bj 
■Qch defendant. 


A0AIH8T Gbbditobs 10 oompetent» it not iq^pearing that the indebtedneea 

waa ovideaced by writing. 
TBAxam IB Fbaudulbzit AOAiirBT CuDiTOBfly TBouoH Madb nm Yalo* 

ABLB Ck»98i]>nuTi0N, if not niade in good faith, bnt with the intent to 

hinder, deUy, or defraud creditora. 
Pboot ov YnrDB'B Aotital PAsncoPATioH iH Fbaud ot Ybhdos in aale 

frandnlent aa to creditora ia not neoeoaaiy; knowledge of the frandalent 

intent or of faoti aaifioiMit to pot a pmdent man upon inqnizy ia anffi- 


Appbaii from a judgment for the claimant, in a trial of the 
right of property in certain goods transferred to said claimant 
bj one Walton. The question was, whether or not said transfer 
was made to hinder, delay, or defraud creditors. The goods 
have been levied on under an execution from Galveston county, 
upon a judgment in favor of Mills & Oo. and against John P. 
Walton & Oo. The plaintiffs in execution offered one Mills as 
a witness to prove the indebtedness upon which the judgment 
was rendered, but the evidence was rejected on objection by the 
daimant. They then offered in evidence a copy of a note from 
Walton & Oo. to Mills & Co., certified by the clerk to be a true 
copy of the note filed in the action in which judgment was re- 
covered. This evidence was also rejected. Mills was again 
offered as a witness, and asked if he knew of any indebtedness 
from Walton & Oo. to Mills & Oo. prior to the day of trial of 
the action in question, but upon the claimant's objection, his 
testimony was again rejected. After verdict and judgment foe 
the claimant, the plaintiffs appealed. 

E. H. HcrreU, for the appellants. 

J. E. Oracerm and E. A. Beeves, for the appellee. 

832 Mills v. Howeth. [Texu% 

By Court, Whseleb, J. A copy of the record of the suit in 
Galyeston would have been the best evidence of the particular 
indebtedness of the defendant in execution, which the plaintifiir 
were seeking to enforce. But it was competent to prove other 
indebtedness, either to the plaintiffs or other parties, by any 
witness who knew the fact. The court therefore erred in refus- 
ing to permit the witness Mills to testify to the existence of 
such indebtedness. It does not appear that it was proposed to 
prove by him any indebtedness evidenced by writing; and it ia 
not perceived on what ground his testimony was excluded. If 
the record truly embodies the evidence as it was given upon the 
trial, it does seem that the charge of the court presented i^ 
view of the case more favorable to the plaintiff than the facta 
warranted. The old firm of Walton & Oo. was sunk and 
merged in the new firm of F. 0. Howeth & Co. contem- 
poraneously with the transfer of the goods. At the same time 
that Walton made a transfer ostensibly of his entire stock in 
trade, he secretly retained an interest, and was a member of 
the new firm, in which, however, his name did not appear. 
His indebtedness was known to the members of the new firm; 
and if the transfer and introduction of new members under & 
new firm name was not a contrivance to shelter and protect the 
goods from creditors, it certainly bears that appearance. Where 
there is evidence of fraud so convincing, the proof to rebut it 
ought to be very satisfactory. The charge of the court seems 
obnoxious to the objection that it gave undue importance to 
circumstances relied on for that purpose, which there is reason 
to believe were contrivances to cloak and conceal the fraud. It 
is not enough that the transfer may have been for a valuable 
consideration; it must have been bona fide also, and not made 
with the intent to hinder, delay, or defraud creditors. Nor is it 
necessary to prove an actual participation in the fraud on the 
part of the vendee. If he knew of the fraudulent intent of hia 
vendors, or had knowledge of facts sufficient to excite the sus- 
picions of a prudent man and to put him upon inquiry, it is suf- 
ficient: TJiompsonY. McChreal, 10 Tex. 393; Edrington v. Rogers^ 
15 Id. 188. These principles were not distinctly brought to 
view by the charge of the court, and there is reason to appre- 
hend that its effect, as a whole, was to cause the jury to lose 
sight of them. But it is not necessary to determine whether 
there is anything in the charge of the court, or in the refusal 
of a new trial, which would require a reversal of the judgment, 
as it is clear that it must be reversed on account of the rejeo« 

1857.] OOOPEB V. SiXOLETON. 833 

don of the testimony of the witnees Uills, and the parties will 
probably come better prepared on the law and facts of the case 
upon another trial. The judgment is rerersed and the cause 
Beyersed and remanded. 

TaAKsna oa Conystavoi fob Vauj*, wmor Fbavdulsht AOAnref 
Cbxditobs, akd wHKir KOT: See Worland ▼. Kimberiin^ 44 Am. Deo. 786; 
Brmen ▼. Foree^ 46 Id. 619; Peek t. Land^ Id. 368; Hutchinm>n ▼. Hom, 60 
Id. 470; Merry y. Bostwiek, 64 Id. 434; Rogers t. Evana, 66 Id. 537; Kuyben- 
daU ▼. MeDonald, 67 Id. 212; Covanhooan ▼. Hari, 60 Id. 57, and notes. 


Traksfirs See WitrUmd v. KknberUn, 44 Am. Deo. 785; Brawn ▼. Foree, 46 
Id. 619; Anderetm ▼. BcberU, 9 Id. 235; Garland v. Rwee, 16 Id. 756. 

That Question or Fra^tdulbnt Intknt in Convstancb to hinder, de- 
lay, or defraad, crediton is one of fact for the jury, bnt that their Terdict^ 
if clearly againet evidence, may be aet aside, ia a point to which the principal 
case is cited in Weieiger y. ChUholm, 28 Tex. 792; see PeUibone ▼. Stevene, 38 
Am. Dec. 67; Brigeoe y. Branaugh^ 46 Id. 108; Dodd ▼. MeCraw, Id. 901; 
JfeMiehael y. McDemuM, 55 Id. 560; BiUinge y. Bmtnge, 66 Id. 319; iTny- 
kendaU y. MeDonaid, 57 Id. 212; Jetsup y. Johnmm^ 67 Id. 243, and notes 
upon the general subject as to when fraud is a questkni of fact, and when a 
question of law. 

GooPEB V. Singleton. 

[19 Tkzai, 360.] 

IhEFEcr OT TiTUi TO Land is Good Defense to Vendee in an action for 
the purchase money, so long ss the contract is exeoutoiy; and the vendor 
must show that the yendee purchased at his own risk, and with knowl- 
edge of the defect, or that he agreed to take such title ss the yendor had. 

Vbkdee in Executed Contract for Realty cannot Resist Payment of 
the purchase money for defect or failure of title, as a general rule, both 
in England and in the United States; but unless there have been fraud - 
alent representations, must pay the money, and rely upon the covenants 
in his deed; but the rule is otherwise in Texas, and the vendee, after 
oooyeyance, may resist payment for a total failure of title, though there 
be no fraud, and is not compelled to resort to his covenants, especially 
where the vendor is or may be insolvent or beyond the reach of the court, 
unless the vendee takes a conveyance with warranty, with knowledge of 
the defects, when he cannot resist payment unless he has been evicted. 

Distinction between Liabilitibs of Vendee in Executory and Vendee 
IN Executed Contract for the sale of realty is that the former should 
be relieved from payment on showing defect of title, unless the 
yendor shows that he knew the defect at the sale, and consented to 
take such title as the vendor had; while the vendee in an executed oon* 
tract, to escape payment, should show, beyond doubt, failure of title ia 
whole or in part, danger of eviction, and circumstances prima fade re* 

884 OooPEB V, Singleton. [Texaa^ 

pelling the presamption that he knew, and took the risk of the defect ai 
the time of the sale. 

Plba of Vxndxs in Exxcutxd Contract must Atkb Want of Kirowi*- 
■Dos OF DsFKCT IN TxTLB to the land parchaaed, where he eeeks to 
defeat a xeooTery of the pnrohaae money on the ground of snch defect. 

DinN8B OF Dkfbct or Failurb of Titlr is of Equitablx Naturb in 
an action to recover the price of land eold, and a plea setting up such 
defense should aver facts which would warrsnt relief in equity. 

Plba bt Husband's Vbndbb that Titlb is Dbfbctiyb bbgausb Prof- 
BBTT WAS CoMMUNiTT Pbofbbtt, and that the vendor's wife is dead 
leaving several children, should show the condition of the oommunitj 
estate, so as to negative any idea that the heirs may be satisfied out of 
other property, in an action for the purchase money. 

Allowing Party to Except to Pleadings Orallt, the exceptions to b» 
afterwards reduced to writing, where the trial proceeds without sucb 
written exceptions, and they are filed long after adjournment, is no 
ground of reversal; as in case of a demurrer to an answer submitted 
orally and not filed until many months after the adjournment. 

Appeal from a judgment for the plamtifT in an action on ocr- 
tain notes. The facts are stated in the opinion. 

Jf. Casey, for the appellant. 

Leuns and FUmagan, for the appellee. 

By Court, Hemphill, 0. J. Salt on two notes executed by the 
appellant Cooper, payable to William Crisp or bearer. 

The defendant pleaded, in substance, that the notes were 
given in part for the purchase money of attract of land of one 
hundred and sixty acres, which is described by its boundaries; 
that the taract was sold to defendant by William Crisp, the 
payee in the notes, on the day of their date, viz., the twenty- 
sixth of September, 1854; that on that day the said Crisp, in 
consideration of the sum of seven hundred dollars, of which the 
said notes constituted a part, executed a warranty title deed to 
defecdant for the land; that the tract, before the date of the said 
deed, had been the common property of the said Crisp and his 
wife, Eliza, both of whom with their family resided upon the land 
for about three years, until, in the year 1854, the wife of the 
said Crisp died on said laud; and that after the death of said 
Crisp's wife the land was sold, as above stated, to defendant by 
the said Crisp. The plea further states that the said Eliza Crisp 
left several children, who are yet alive, some of them married, 
some minors, some residing in this state, and others in other 
states; that there has never been any administration on the 
estate of Eliza Crisp; that the above-named heirs are entitled 
to one undivided half of said tract of land; that all the pur- 

1857.] Cooper v. Singleton. 335 

cbase money except the notes sued on has been paid i» 
Cxisp; that the plaintiff. Singleton, if he obtained the notes 
sued on before they became dne, had full notice that they were 
executed for the consideration above mentioned. By amend- 
ment, the defendant averred that the notes were not the prop- 
erty of the plaintiff, but of the payee, William Crisp, and that 
the consideration of the said notes had wholly failed. The 
plaintiff demurred to the plea. The deiaurrer was sustainod^ 
and the jury found for the plaintiff. 

The important question in the cause is, whether the matter 
of the plea was a valid defense to the action. 

It will be observed that the contract for the purchase of the 
land was not executory, but executed. The vendee had received 
his deed, with covenants of warranty. Had the contract been 
executory, the defense as stated might have prima facie been 
BufScient. The general rule is, that as long as the contract re* 
mains executory, the purchaser shall not be compelled to pay 
the pturchase money and take a defective title, except the pur- 
chase has been made at his own risk, or he has agreed to accept 
Buch title as the vendor can give: Brown v. Haff^ 5 Paige, 23& 
[28 Am. Dec. 425]. Nor will the mere fact that the vendee has 
gone into and remained in possession amount in itself to a 
waiver of objection to the title: Jcfnfis v. Taylor ^ 7 Tex. 244. 
That the title is defective, is a good defense to the vendee, under 
contract in fieri^ and it devolves upon the vendor to show, by 
direct evidence or by circumstances, that the vendee was pur* 
chasing at his own risk, and with a knowledge of the defects 
of the title, or that he would take such title as the vem lor could 

But when the title has been passed, and the der>d executed,, 
the purchaser caimot, according to the doctrine in England 
and in most of the states, resist the payment of the purcb %se 
money on the ground merely of defect or failure in the title. 
Where there has been no fraudulent representations on the part 
of the vendor as to the title, the general rule is, that the vendee 
nnder a deed must pay the purchase money, and rely upon th» 
covenants in his warranty for redress; and if there be no fraud 
and no covenants, he is not entitled to any relief: Craddock v. 
Shirly, 8 A. K. Marsh. 288; MiUer v. Lang, Id. 834; EaUey v. 
Oldham, 6 B. Mon. 239; Lighty v. Shorb, 3 Penr. & W. 447 [21 
Am. Deo. 884]. 

But such is not the rule as recognized by the coiuts of this 
state. The doctrine in Tarpley v. Poage^a Adm'r, 2 Tex. 139, ia 

836 Cooper v. Singleton. [T 

to the effect that though there may be a deed with oorenanta of 
warranty, yet the yendee may resist the payment of the pnr- 
chase money in cases where the title has tamed out to be wholly 
defectiye, or there be a Talid outstanding title in others; that 
where there clearly was no title in the vendor, the purchaser is 
not compelled to pay, and then, after eyiction, seek his remedy 
on the covenants of his deed, especially where the vendor is or 
may probably be insolvent, or beyond the reach of the court 
The rule in that case is not upon the ground of fraud in the 
Tender, but of such failure of title as exposes the vendee to the 
danger, or in fact to the certainty, of eviction. 

No question was raised in that case as to whether the pur- 
chaser had, prior to the sale, knowledge of the defects of the 
title. But in the subsequent case of Broch v. Sotdhwick, 10 
Tex. 65, it was held that where a vendee under a deed with war- 
ranty accepted the title with knowledge of its defects, he could 
not resist the payment of the purchase money unless he had 
been evicted. 

In the case of Ihrpley v. Poage^B Adm'r, 2 Tex. 139, reference 
was made to cases in South Carolina and in Pennsylvania. The 
reports from South Carolina are not accessible, but I will refei 
more fully to the cases from Pennsylvania. 

The first and leading case on the subject of the detention of 
the purchase money is that of Steinhauer v. Whitman, 1 Serg. & 
B. 438. The vendee was in under a deed of special, not general, 
warranty. He had been evicted from a part of the premises by 
title paramount to that of the vendor. He set up this eviction 
in defense against a suit for the purchase money, and the doc- 
trine maintained in the case, as condensed by Justice Kennedy 
in the subsequent case of Roland v. Miller, 3 Watts & S. 390, 
was, that if the consideration money had not been paid, the pur- 
chaser, unless it appeared that he had agreed to run the risk of 
the title, may defend himself in an action for the purchase 
tnoney, by showing that the title was defective either in whole 
or in part, whether there was a covenant of general warranty, 
or a right to convey, or of quiet enjoyment by the vendor, or 
not, and whether the vendor has executed a deed of conveyance 
for the premises or not. 

' The rule as established in this case in 1815, and which was 
founded upon long-established usage, has not been dej^arted 
from in later cases in the courts of Pennsylvania. It has been 
the subject of severe comment, but has maintained its ground 
«s an established rule of law. It was affirmed in Edri v. Por> 

1 857. J CiOOPEB V. SiHOLBTON S87 

ier^9 Ej^n, 6 Qet^. & B. 901» with the qualification that if «hi 
▼endee knew of the defect at the time of the purchaae» without 
stipulating for a coTenant aa secnzity against it, he oonaentSy in 
«fieet, to take the risk of the purchase on himself. Other deda* 
ions followed, and the resolt of the previous cases was in Lighty 
V. Shorb, 8 Penr. k W. 452 (24 Am. Deo. 834], stated to be this- 
that where there was a kuown defect, but no coyenaut or fraud, 
the vendee can avail himself of nothing. But where there is a 
covenant against a known defect, he shall not detain the pur- 
cliase money unless the covenant has been broken; or in other 
words, he must perform his engagement whenever his knowledge 
aod the state of the facts continue to be the same thej were at 
the time of the conveyance. 

In Ludvick v. HurUginger, 6 Watts & B« 61, deeided in 1842, 
it is held that a superior, indisputable, outstanding title in a 
third person is a good defense against the payment of the pur- 
chase money, although a deed of conveyance has been executed, 
unless it was explicitly agreed and understood between the par- 
ties at the time of the sale that the vendee was to take the title 
at his own risk. But the outstanding title must be indubitably 
good. But where the contract for the purchase is inJUsri^ there, 
if it should appear that the title of the land is anywise doubt- 
ful, the vendee vrill not be held to pay the purchase mon^, un- 
less it should appear that he so expressly a g r ee d; Sideboiham v. 
BarringUm, 5 Beav. 261; Doney v. Jackfman, 1 Beig. & B. 42. 

In Bo8^8 Jppeal, 9 Pa. St 496, it is said that the doctrine of 
Sieinhaugr v. Whitman, 1 Berg. & B. 488, is not of universal ap- 
plication. It does not extend to cases where it is expre s sly 
stipulated or shown by circumstances to be the understanding 
of the parties that the vendee vras to take upon himself the risk 
of a defect of title or an incumbrsnce. 

I hare oited thus largely from these reports, not with the in* 
tention of expressing an indiscriminating assent to all the do<^ 
trines in the cases cited, but for the reason that the general 
doctrine of the cases as to the justice of detaining the purchaee 
money where the title has failed, though there may have been no 
eviction, is more analogous to our own rule than that recognized 
in other courts, with the exception of those of South Carolina. 

The plea in the case on hand avers the title of the vendor to 
be defective, but does not state when that fact came to his 
knowledge. He admits that he has the vendor's deed with war- 
ranty. He does not allege that there was fiauclulent representa- 
tioQ, or even concealment, on the part of the vendor. He alleges 

▲m . Dm. Vol. LXX-U 

838 _CooPBB V. Singleton. [Texas, 

merely defect of title, and he oertamly should ayer, in order to 
show that he has equity, that he did not know of the defect 
at the time of sale. If he be exempted from the necessity of 
abiding eviction, and then resorting to his covenants, he should 
aver such facts as would in equity and justice entitle him to 
relief. As long as the contract for the sale is in fieri, the ven- 
dor, to enforce payment, should show, where the vendee relies 
upon defect of title, that the latter had purchased at his own risk; 
but when it is executed, when there is a conveyance, and the 
land will not revert to the vendor though there may be default 
in payment of the purchase money, when the vendee has the 
covenants of the vendor for his ultimate security, the burden 
should be upon the vendee to show such facts as would relieve 
him from the payment. He shoidd aver such facts as would, if 
true, authorize the court to grant the relief; and if he have a 
deed with warranty, he ought not to be released from payment, 
unless in case of fraud on the part of the vendor, or of defect 
in the title not known to the vendee at the time of the sale. He 
cannot require of the court to institute any inquiries, unless on 
averments stating fully all the facts and repelling conclusions 
as against the equity sought on his behalf. He cannot be re- 
quired to prove a negative, but he can prove the facts and cir- 
cumstances of the sale; and if from these no inferences arise 
that the purchase was to be at his risk, and no proof establish- 
ing such fact is offered by the vendor, he ought to be let in to 
his defense. 

The difference between the liabilities of the vendee under an 
executory and executed contract is this: that in the former he 
should be relieved by showing defect of title unless on proof by 
the vendor that this was known at the sale, and it was under- 
stood that such title should be taken as the vendor could give. 
In the latter the vendee should establish beyond doubt that the 
title was a failure in whole or in part; that there was danger of 
eviction, and also such circumstances as would prima facie repel 
the presumption that at the time of the purchase he knew and 
intended to run the risk of the defect. 

Some defects of titie are less known or open to observation 
than otl^rs; and none, in times that are past, have been more 
hidden or less khown than those enveloped in the obscurity of 
community rights. 

The plea in this case does not aver a want of knowledge of 
defect in the titie at the time of the purchase, and on that 
ground is defective. 

1857.] Cooper -j. Singleton. 839 

It is insufficient in other particulars. There has been no ad- 
ministration on the estate of Mrs. Crisp, as is averred; and in 
a limited sense it is true that her heirs are entitled to the one 
half of the land. But their interest may be subject to great 
modifications, and ultimately may be altogether excluded. They 
are entitled, truly, to the half of such portion of the common 
property as may remain after the payment of the debts of the 
community. There may be, also, a large amount of community 
property in addition to the land in question. If such be the 
fact, the portions of the heirs of the wife may be satisfied out of 
the other assets, and this, being assigned to the Tender as bia 
shore of the common property, would inure to the benefit of his 
vendee, the defendant. The plea should have averred the con- 
dition of the community estate. The jurisdictions of both law 
and equity are or may be exercised in every case in which it 
may be necessary to exert the power or apply the principles of 
either, or of both law and equity. 

Defenses of the character of the plea in this case are peculiarly 
of equitable cognizance, and the pleadings should aver all such 
facts as would give relief in equi^. If the titie be a total failure, 
and if the equities of the case be such that the vendee should 
not be condemned to the distant, and perhaps fruitless, appeal to 
his warranty, the vendee should pray for rescission for refund- 
ing such portion of the purchase money as has been advanced, 
and offer to sxirrender his deed, and also that the respective 
equities of the parties as to rents and profits on the one band, 
and improvements on the other, may be adjusted; or if title to 
only a portion of the land has failed, to release and recouvey 
the vendee's right to that portion. Or if the tiUe has not 
wholly failed, and it can be ascertained in a reasonable time 
whether there will be eviction, the remedy should be by injunc- 
tion to restrain the collection of the purchase money until the 
danger from the outstanding title has passed; and for this pur- 
pose, the parties who claim under the outstanding title may be 
made parties, and required to assert or relinquish their claim 
to the land. There are numerous cases in tiie Kentucky re- 
ports in which this character of equity has been administered, 
with the additional fact that the vendor was insolvent, and con«^ 
sequentiy a suit on his covenants would avail nothing: Simp- 
son V. Hawkins, 1 Dana, 803. But it is unnecessary to recapitu- 
late the pleas which shoidd be set up in supposed cases. It 
should be remembered that the defense is equitable, and that 
equity cannot be done by halves. In this case there might be 

840 Cooper v. Sinolbtok. [Texa% 

Bonic appamit equity in rafoang to allow the collectioii of tbe 
nottfs, on die gionnd that the rendee had already paid nM>ie 
than half of tbe pnrehaae money, and that prima /acie the in* 
iexcst of the Tendor is but one half. But the yendee shoold 
have alleged ignorance of the state of the title, and also stated 
such &et8 as would show that nltlmately be would most prob- 
ably not be able to secure the whole of the land. 

We are of opinion that the demuner was properly sustained. 

The judgment stales that the demuner of plaintiff to defend- 
aut*8 answer was Bustained. It appears, howeyer, from a bill 
of exceptions, that after the parties announced readiness, and 
the pleadings being read, the plaintiff objected orally to defend- 
ant's answer and amended answer, alleging, among oUier matters, 
want of title in the land, the plaintiff claiming that the amended 
answer was not filed until after the time fixed for pleading at 
the present tenn, that be had no notice of said amended answer, 
and prayed permission to withdraw his announcement of readi- 
ness and except to said answer and amended answer, which was 
allowed, and the court allowed said plaintiff to make and aigue 
said exceptions orally, but to be reduced to writing afterwards 
and filed; and the trial progressed without such written excep- 
tions. This is assigned as enor. But, at most, this appears to 
be but an iirogularity which was admitted to fiicilitate the 
dispatch of the business. 

The judgment shows that there was a demurrer, and that it 
was acted upon by tbe court. The demurrer has been since 
filed, though many months after the adjournment of the coart 
The irregularity is not sufficient ground for the reyersal of the 
judgment, and it is ordered that the same be aflSbmed. 

Judgment affirmed. 

Dmci or Titlb, Ymsjom'B Bight to Bslot oh Qaoirifn or: Sea Walker 
▼. Quigg, 81 Am. Dm. 4S2; OMtm v. Branch Bank, 87 Id. 726; Oo kamm 
V. Rowe, Id. 164; Woodm^ ▼. Bunot, 38 Id. 569; Bohr ▼. Kwdi, 80 Id. 68; 
QoM ▼. RtmAam^ 44 Id. 162; M%Ub ▼. SUvau^ 46 Id. 021; Vkk ▼. Percy, Id. 
303; ThmMom ▼. Cofpoiter, Id. 681; Lyne4 ▼. Bozfer, 51 Id. 735; Salmon 
▼. Hoffman, 56 Id. 822; Dwigki ▼. CtOler, 64 Id. 105; Brifan^t Ez'r v. BooUke, 
63 Id. 117« and notes. The principal caae is cited to Tsrions points cooneoted 
with this sabjeet, ss follows: The distinction laid down in the case b et w e en 
the liabilities of Tendees in executed and vendees in executory ounUatfU foK 
the purchase of land, where a defect of title ia claimed, is apptoved in Hwri 
▼. MeReynoldi, 20 Tex. 599; fftart v. Blacklmm, Id. 605; Jkarwi ▼. TnmmeO^ 
26 Id. 128; Bock v. Heald, Id. 525; Baldndge ▼. Cooh^ Id. 660, 67a A 
vendee, in an executed contract to escape liability for the purchase money, 
must show beyond doubt that the title has failed wholly or partly, and thai 
he has been evicted or is in danger of eviction: JohmMm v. Lomg^ 27 Id. 98i 

1857.] Fbtob v. Stonb. 841 

Price T. Blmmi, 41 Id. 47&. On tb« olhw tend, if the oontnel 
aecQiovy, the yendae oaa raltfe piyiiMiit on Mooo&t of adafeet In tlie 
nnlen he is shown 1^ the TeDdor to have known of the dsfeot st tho 
time of the ssle^ or to have consented to sssame the risk of it» tsUng 
soflh title as the yendor had: SmUhw. Koiem,2l Id. 407; LUO^fMr. T^ns- 
J^, 22 Id. 280; & a, 26 Id. 864; Ortm t. OhoMtOer, 26 Id. 156. 157. The 
oout may nnqnestionably protect the pnrehswr when sued for the imrrhisi 
mooej in snoh a esse: Oober ▼. Heart, S6 Id. 141. A pwrnhssT who fosi 
into posireiion nnder a defeotiye title, haviog leosived Ids deed, may rerisi 
payment, bnt he mnst rsstore the posmsiion and give his dead for oanesDa* 
tiont />anarel ▼. AwmCI, 20 Id. 267. The eMs is elled also as to wha* is a 
saffioiant plea of liOve of title in an notion agiinst a ysndee for the pnidbssa 
moMgr, in Lwdtk t. McGfbmom, 22 Id. 286; Arrvn ▼. DtBmrd. 24 U. 182; 
lesiwon ▼. ^awfaf, 28 M. 228, 224; IWts ▼. Bomf^ 28 M. 421, 426, 8o»as 
to what comstitnes a good petition to set adds a eontmst on the groond of 
fiaad and failnre of ooosiderstion, in /oinrfon ▼. PoweO^ 84 Id. 680l So H 
iseited aa to what cons titnt ss an anwwr snflslsn^y emnsl^g a irihne la 
pay hj a ▼indee to pnwt a lorftitne of Useontnol: JMIt. 011^68 Id. 

Ai TO Bram ov OhttiImbp io HikLv ov Ommujurf Piorunr, ivhsrs 
the motlior disa daring eovertnie, the eass is dted in Jfo^ss ▼. BkB^ tl Tin. 
600. As to tiie ijghts of the s p oo s ss in oommnnity prepsHy gwMsallyrasa 
insnf ▼. OiMM!, 66 Am. Deo. 161, and oasss oltsd in the 

Pbtob V. Stonb. 


Unaav HomBnuD n LmmD as to Yalub, but hot as to Vi 
Lots whiflh it shall emhrsoe, nnder the Tens o un s iitn tion. 

HoiiaRBAD HAT Bxmr n Lots mot CcniTiafious to sash oihv, nndsr lbs 
oonstitation of Tens. 

HoMXBTBAD iH Tbub MAT Inolubb Oiviob OB 8hof in whioh the hsad of 
a fsmOy pnisaas his hosiness, thoogh it may be on a lot not oontignooi 
to the fsndly residsnoe, if the entiie yalne doss not siessd the statotoij 

Tkkfobabt BiBTiKa ov HoMBBnA]> Lots to OnoBB is not an ahandonp 
mentof the homsstsad. 

Ebbob to lererae a jndgmeat in an aetton to tgr tiilo. Tho 
0886 appears from the opinion. 

J. M. CrocheU, for the plaintifb in error. 

J. E. Cravens, for the defendant in error. 

By Court, Hbkphill, 0. J. This was an action by Stone to 
try the title to a lot of land in the town of Dallas. The lot had 
been sold at sheriff's sale as the property of Stone, and the 
Piyors claimed through that sale. The plaintiff. Stone, had 
judgment for the lot and for rents, inth some reductions, whioh 

842 Pbtob v. Stonk [Tezasb 

wero specified. The only imporiaiit question presented by the 
record is whether the lot in question was a portion of the home- 
stead of the plaintiff. Stone, and as such exempt from forced 
sale. * 

The material facts are, that Stone, with his wife and children, 
occupied a house and eight lots, which he purchased shortly 
after his settlement in the town of DaUas, for seyeral years up 
to the death of his wife, yiz., in January, 1855; that Stone, with 
bis children, continued to occupy said house and eijg^ht lots for 
four weeks after the death of his wife; that he then sold the 
luost of his furniture, and rented the house and lots to one C. M. 
Peak; that his children boarded in the house with Peak's fam- 
ily; that Stone also boarded there, but slept in the house upon 
the lot which is in controversy- Said last-mentioned house had 
two rooms, in one of which Stone put his bed and bedding, 
pictures, carpet, toilet, and all the furniture necessaiy to fit it 
up as a bedroom, and which had remained unsold; that the 
other room was used by Stone as a law-office, and had been so 
used by him for a year or two, he having purchased the same; 
that he and children continued to Hve as above mentioned until 
about the first of July, 1855, when he left, with his children, for 
Kentucky; that during his absence the property in controversy 
was sold under execution; that the house and eight lots rented 
to Peak, and the property in controversy, was all the real estate 
owned by Stone in the town of Dallas. It was in evidence that 
the family portraits, with toilet, etc., were in the bedroom in 
the house on the lot in suit; that this lot, together with ihe 
other eight lots, were worth one thousand six hundred dollars. 
It was proved that the eight lots upon which plaintiff had been 
residing during the life-time of his wife were south-east about 
three blocks from the public square of the town of DaUas, and 
that the lot in controversy is on the public square, and on the 
north side. 

By the constitution, sec. 22, art. 7, it is declared that the 
homestead of a family, not to exceed two hundred acres of land 
(not included in a town or city), or any town or city lots, not 
to exceed in value two thousand dollars, shall not be subject to 
forced sale. 

From the latter part of this citation, it appears that the limita- 
tion of the homestead in the town is not to the number but to 
the value of the lots. It is not declared that the lots shall ad- 
join or be contiguous to each other; all that by fair construc- 
tion of the language is required to entiUe the properijy to 

1857.] Pbtob v. Sionx. 848 

exemption is that the property shoold be used for the oonTen- 
ience or uses of the head or members of the family. The ezemp- 
tioQ should not be construed as reserving merely a residence 
where a family may eat, drink, and sleep, but also a place 
where the head or members may pursue such business or ayoca- 
tion as may be necessary for the support and comfort of the 
family. The office of a lawyer or shop of a mechanic is neces- 
sary to the convenience and success of their respective profes- 
sion or trade, but it would frequently be of much inconvenience 
and detriment that this shop or office should be part of the 
same building, or even on the same lot with the residence of the 
family. The exemption is not thus to be restricted in its ben- 
efits. It allows any number of lots, not to exceed two thou- 
sand dollars, and it cannot be material how many, or how far 
or how near or remote from each other may be the lots occupied 
for the convenience of the family and for the prosecution of the 
business or employment of its head or members: See Hancock 
V. Morgan, 17 Tex. 582; and Meihery y. Walker, Id. 598. 

The exemption would have included the lot had the house 
been merely an office; but it was more. One room vras occu- 
pied by the plaintiff as his bedroom, the depository of the 
family portraits and remaining furniture. To this extent it 
was his actual residence, and its claim, as such, to exemption 
cannot be questioned. 

The property seems to have belonged to the community goods 
existing between the plaintiff and his deceased wife, and her 
heirs have an interest in the same. But the homestead charac- 
ter of the property was not extinguished by the death of the 
wife. That would remain in its integrity and entirety as against 
creditors of the survivor, or of the community, and even, it 
would seem, against the heirs of the wife until division of the 
community estate; and especially would this be the rule where 
the heirs of the wife are the children of the marriage, are 
minors, and with their surviving father constitute the family. 

Nor was the exemption lost by the fact of the residence and 
eight lots being rented. It does not appear that there was any 
intention to abmdon the place as a homestead, or that the rent- 
ing was for any purpose other than temporary convenience. 

It is in proof that the plaintiff with his children left for £en- 
tucky, and though it is not stated that he or they returned, yet 
ihiB 18 to be inferred from the record. The property, it is said, 
was sold during his absence, thus producing the impression 
that he left on a visit which was temporary, and that he had re- 

S44 Fbtob v. Stonb. \TexBfs 

turned. Of oonne mioli absenoe oould not alTeot the cbazactcr 
of the property as a homeetead. 

We are of opinion that there was no error, and that Judgment 
be affirmed. 

Judgment affirmed ^__^ 

HoMntsAn, What mat bb Szmrr aa.— The qiiOTtka m towbeftaiii^ 
oonatitoto a homestead exempt from eixeeiitio& aale in any atato dap e n di^ «C 
oouaa, upon the terma of the particalar atetnto oreating the eacemptioo. 
There hi» however, hi all homeatoad Uwa a general ahnilaiity npon thia pohil 
We propoae here to oonaider the aabjeot hi ita gmacal aapeota, withimt nndei^ 
*^vs«>j» ^ |Jd«0 aruninmtiiiii dI the nroriaiaDa <if nartionlar atatntfa. 

What Titia NnonaAsr or Bvwwmnan to Surobt HonaTaAn.-^ 
homeatead right ia not an aetata hi the had* but a mere privikge of exanip> 
tion from exeontkm of anoh aetata aa the holder haa: Kofee to Poole t. Oer- 
rardf 66 Am. Deo. 48S. Upon prindple, theKefore» there ia no reaaon why 
the law ahoold oonoam itaelf at all with the nature, extent^ or valne, of the 
homaateader'beatateorhitereatin the premiaea. If he haa no titlop or a da> 
feetive or limited title, that ia hia miafortone; but why ahoold that mlafor- 
tano be inoreaaed by depriTing him of the privilege of holding anoh intenat 
aa he haa free from the cUuma of creditors? Ia there any imaginable reaaon 
why a bad title ahonld be liable for tlie owner'a debta where a good titia 
woald not be? That the nature or qvamhim of a debtor'a eatate in hia home- 
atead ia immaterial in determining whether it ahaU be exempt ia in aooocd 
with what ia laid down in the better oonaideTed oaaaa. Thna in Brookt t. 
Fyde, 87 OaL 873, ithiaaid that the debtor'a want of title ia a <' felae quan- 
tity ** in the aolatioa of any qneation on thia point aiiaing between the debtor 
and hia oreditora: See alao Bpmeer t. OtimmoMt Id. 99. In ITotfa t. OordoiH 
66 AhL 646» the ooort aay: "The faileEiority, infirmly, or frailty of hia intar- 
eat may, to him and hia family [the debtor'a], leewn the valoe of the home hi 
which they dwell, bat it cannot injare oreditora, from whoae demanda it may 
be ia thereby withdrawn leaa of hia preeent property or hia fntoro aoqniaitiona.* 
The abaordi^ of the poaition that a creditor may defeat hia debtor'a right of 
homeatead in property on the ground that it ia not the debtoi^a property, and 
then aell it on execation because it ia the debtor'a property, ia weU ahown b} 
"hLr. Thompson in commentiDg on the case of CkuroJty ▼. Du ^ose, 6 S. G 403: 
Thompaon on Homeeteada, aec 166. 

It ia dearly aettled that a debtor need not be the abaolate owner in fee in 
order toeetablish a homeatead right in land, bnt that it ia enoo^, in general, 
if he haa any eatate in fee for life or for yeara, which may be the aabject of 
sale on execation: Thompeon on Homesteada, sees. 165 et ee^.; Smyth on 
Homeeteada, aeoa. 114 et aeq.; BcuihoUmew v. Weal, 2 Dill. 200; WaiU v. 
Gordon, 66 AU. 546; Deert v. Chapman, 25 III. 610; Blw ▼. Bhie, 38 Id. 9; 
(hmkiim y. Fo&Ur, 67 Id. 107; PotU v. Davenport, 70 Id. 466; Peltm t. De 
Bepard, 13 Iowa, 63; Eogan t. Mawner$, 23 Kan. 651; S. C, 83 Am. Bep. 
109; Cfrifin v. Proctor^ 14 Boah, 671; MeKee t. WUeox^ U Mich. 868; Johk- 
ion y. BiehanUon, 83 Misa. 462; MeOrath v. St. Clair, 56 Id. 80; BUmU v. 
DheUng, 66 Mo. 875; In re Swearinger, 17 Nat Bank. Beg. 188. Thna a 
tenant by carteey, having a life eetate aabject to levy and sale on ezeoatlon, 
ia an " owner" of land within the meaning of the atatnte allowing to " own- 
era " a homeatead: Potts v. Da/oenport, 70 IlL 456. So a debtor may have a 
homeetead in leasehold property: Thompson on Homesteads, sea 176; Smyth 

1857.] Fbtob v. Sioml MS 

on HomeetaMk, aea 117; FTottf t. Ocrdam^ 96 AK MB; OmMm ▼• 
67 IlL 107; Pdom y. Z>6 Bemtrd, 13 Iowa, 63; Bogim t. Mtmmam^ 23 Kaa. 
551; S.CM33Am. Bep. 199; /iir«i9i0eariiH)«r, 17Naft.BHik.Bcg.138. &• 
where the debtor has erected a home on land held under a leaae which tha 
lessor may terminate at will, the lewco having a right to renora the hoaaa: 
WaUa y. Chrdon^ 65 Ala. 546. The debtor's estate may be eqnitsble only, 
and not l^gal, and yet he wiU be entitled to the benefit d the homestead 
law: Thompson on Homestesda, sec 170; Bhu y. BUte^ 38 DL 9; Tomim t. 
HUpard, 43 Id. 300; ffewiU v. Jttmiin, 41 Iowa. 35; TWroal t. Swam^ 15 
Kan. 146; Moore v. JteaoeB, Id. 150; Orr y. Sknift^ 22 Mich. 260; WUder ▼. 
HoMghey^ 21 Minn. 101; Hofiman y. Mimeh^ Id. 107; Ckeaikam t. Jcme^ 68 
N. 0. 153; Jfoiyoji t. SUant, 41 Vt. 398; Jalmmm t. May, 16 Naft. Bank. 
Beg. 425. Thns there may be a homestead in an equity of rsdeoiptioB: 
CAttKAom y. /oiies, 68 N. C. 153. Soadebtorin possssskm dland imder a 
contract of parchase, haying reosive^ no oonysyaooe, mi^ haya a home- 
stead thexBin: BartJiokmtw y. ITeiC, 2 DiU. 290; BIm y. Bkt^ 88 lU. 9; 
Fyft y. J^eers, 18 Iowa, 5; SHimwh y. RkkardMom^ 44 Id. 373; Qr^iU y. 
/Voetor, 14 Bosh, 571; McKtB y. IfUeoas; 11 Mich. 358; Attmyr. CkUdmeO, 
20 N. W. Bep. 692; 8iaU y. IHveUtig, 66 Mo. 375; MeMaim§ y. Camfbttt, 
87 Tex. 267. So thoogh the land has not been Inlly paid for: AIUm y. 
Caldwell, mifira} MeMamu y. CampbeU, ntpra, 8o in casa d land por- 
ehased from the goyemment and psrtly or wholly paid for, wbera tba poiw 
ehaser has reoeiyed his oertifiosla bat no patent: AUm y. Oaldwdl, mtprm; 
Suae y. Di9dimg, 66 Mo. 375. Contrary to tfaa doetrine ol these casat, it 
was held in Oaraty y. Du Bote, 5 8. OL 493» that one holding land onder a 
oontraot of pnrohase ooold not haye a homestead therein, b ecaose his interest 
was not snbject tosale on mesne or final proosss^ within the meaning of tha 
constitiitional proyision relating to homastsads. That case arose on a prcK 
seeding against a ahariff for not making tha monsj on an e3Deeiitio& by tlie 
sale of property held nnder snoh a oontract, tha ahariff haying intecpossd 
thedefanse that thedabtor hadahomestead therein. Thaooort ralsd agunat 
this defense. Tha result of the doctrine of this decision woold be, aa forcibly 
shown by Mr. Thompson, that an officer, in such a case, would be held liable 
" for not sailing property to which the defendant in tha eocecation had not 
title whioh waa snbject to leyy and sale: " Tiiompson on Homeatsada, ase. 

Wbether mere possession withont title is sufficient to sopport the home- 
stead right has been made a question in a number of cases. Upon principle^ 
as we haye already seen, there is no yalid reason why a naked po s s es s i on of 
land should not giye the possessor a right to claim it aa his homestead, aa 
against his creditors, unless the statute is express to the contrary. If the 
debtor's possessory right is of sufficient value to be an object of desire to his 
creditors, it would certainly seem to be of sufficient value to the debtor him- 
self to entitle him to have it protected under the homestead law. Possession 
may grow into an absolute title by lapse of time, and is certainly as valuable 
a right as some inferior interests in realty, which are admitted on all hands 
to be subject to proteclion under the homestead act. In any case, indeed, 
possession is the very thing which the law undertakes to protect by the home- 
stead exemption. The policy of the law is to save the debtor and his family 
from being deprived by his creditors of the shelter of his homestead roof. 
Tba statnte says to the creditor that he shaU not turn his debtor out of poa 
Bsssion of his home. So long as the possession is not disturbed, the value of 
tfaa homestead aa a home is as great where the debtor lias no title as if he wers 

846 Pbtob u Stone. [Texa«i 

the absolute owner in fee. The law, therefore, should protect the possesnoiiy 
and not oonoem itself with the title. This would seem to be, at least, the 
theory of the homestead exemption, independently of any adjudications upon 
the snbject. And in accordance with what is here said, it has been held that 
a naked possession without any title whatever is sufficient to give the pos^ 
sessor a homestead right against all the world but the true owner: Spencer v, 
Oeissman, 37 Cal. 936. On the other hand, it has been determined in other 
oases that some estate in the premises is essential to constitute one the 
*' owner,*' so as to be entitled to the benefit of the homestead act: Charlesa v. 
LamherwUf 63 Am. Deo. 457; Mcrgan v. Sieariu, 41 Vt. 398. Hence it is 
held that a tenant for years whose lease has expired cannot have a homestead 
in the leased premises: Brown v. KeUer, 32 111. 151. In the same case it was 
decided that one who had no estate in the land upon which his house was 
situated could not claim the house as a homestead. The same doctrine is 
laid down in Dakota in Myrick t. BiU, 17 N. W. Rep. 268. Certainly a 
naked possessor is not to be protected in a homestead right as against the 
true owner: Mann v. Rogers, 35 Gal. 316; Brooks v. Hyde, 37 Id. 366; i/e- 
Cflurken v. McClurken, 46 HI. 327. 

The homestead may be carved out of the separate estate of a husband: i?e- 
vcdk y. Kraemer, 68 Am. Dec. 304; or out of land the legal title to which is in 
the wife, the husband having only an estate by the curtesy: Boyd v. Oudder- 
hack, 31 IlL 113; PoUa v. Davenport, 79 Id. 455; or of which the wife has the 
legal and the husband the equitable title: Orr v. Shrajl, 22 Mich. 260; or 
out of the separate estate of the wife: Id.; ParUe v. Stewart, 50 Miss. 717; 
although this is said to be doubtful in California: RevaXk v. Kraemer, 68 Am. 
Dec. 304. Where a homestead was sold and the proceeds invested in other 
land intended to take its place, but by mistake the title was taken to the 
wife only as a sole trader, and she became bankrupt, it was held that she 
must be taken to hold the land in trust for the same uses as the original 
homestead, and that a purchaser of the land at a sale in bankruptcy of her 
estate, having notice of the facts, took it subject to the same trust: Murray 
V. Sells, 53 Ga. 257. A homestead may also be established upon community 
property of the husband and wife: Bevalk v. Kraemer, 68 Am. Dec. 304; 
Jiiley v. Pehl, 23 Cal. 74; or, in Texas, upon land of which one undivided half 
is tlie wife's separate estate, while the other undivided half is, in equity, the 
husband's separate property: Willis v. MaWiews, 46 Tex. 478. But neither 
out of separate property nor out of community property can the husband and 
wife have more than one homestead: Thompson on Homesteads, sec 225; 
Oainhette v. Brock, 41 Cal. 84; Tourville v. Rieraon, 39 IlL 447. 

The question as to whether or not a homestead can be carved out of land 
held in joint tenancy or in land held in common is sufficiently discussed in 
the note to WoJfw, Fleischacker, 63 Am. Dec. 122-125. See also Freeman on 
Cotenancy and Partition, sec. 54. The prevailing doctrine is, that a home- 
stead cannot be set apart out of partnership realty: Kingsley v. KingaUy, 39 
Cal. 665; Rhodes v. Williams, 12 Nev. 20; Terry v. Ben-y, 13 Id. 514; In re 
Smith, 2 Hughes, 307; Short v. McOruder, 22 Fed. Rep. 46; Drake v. Moore^ 
23 N. W. Rep. 263. Notwithstanding any attempt to create a homestead out 
of such property, it remains subject to the claims of partnership creditors: 
Rhodes v. Williams, Short v. McOruder, Drake v. Moore, supra. But it 
seems that where a partner builds a house with partnership funds upon his 
own lot, with the consent of his copartner, he may constitute it his home- 
stead, the house beooming a part of the realty: In re Parks, 9 Nat. Bank. 
B^. 272. 

1857.] Prtor v. Stonk 347 

Possession and Oocupation of Homzsteab, Necbssttt, Natusb, and 
BuFTiciENCT of. — 1. Po88e88ion^ yecessUyqf. — Possession is nnqaestionablj 
e8sen^ al to constitnte a homestead, unless the statute expressly dispenses with 
it: Mann ▼. Rogtn, 35 Gal. 316; McCannaughy v, Bcuster, 55 Ala. 379, over- 
ruling Melton v. Andrews, 45 Id. 454. There cannot bo a homestead in a 
mere expectancy or remainder which gives no present right of occupancy: 
MurMmm v. PlyUr, 87 N. C. 79. 

2. Ocevpoficy, Neeestity and Sv^tdency q/! — Not only mast there be posses- 
sion, but there must also, as a general rule, be occupancy of the premises, 
for occupancy is of the very essence of a homestead: CharUst v. Z^wherion^ 
63 Am. Dec. 456, note; McCannaughy v. BaxUr, 55 Ala. 379; W'dlianu 
T. DorrU, 31 Ark. 466; Olwer y. Snowden, 18 Fla. 823; Salary v. IlewleU, 
Id. 756; Drucker v. Rosenstein, 19 Id. 191; Fisher v. Cornell, 70 HI. 216; 
Neal V. Coe, 35 Iowa, 407; AUm y. Chase, 58 N. H. 419; Cole v. Laeoniaetc 
Bank, 59 Id. 53; 8. C, Id. 321; Bowler y. Collins, 4 Keb. 494; Morgan y. 
Steams, 41 Vt. 398; Bunker v. Locke, 15 Wis. 635. Merely filing a declara- 
tion of homestead is of no effect if the land is not occupied: Oliver v. Snouh 
den, 18 FU. 828; Drucker y. Rosenstein, 19 Id. 191. If there is no dwelling- 
house on the land, and it is not occupied or used, nor intended to be occupied 
or used, as the home of the owner or a part thereof, it cannot be his home- 
stead though he has no other land: Cole v. Laconia etc. Bank, 59 N. U. 53; 
8. C, Id. 321. A mere intent to bnild or repair and occupy a dwelling- 
house thereon will not impress it with the character of a homestead if not 
carried into effect immediately: Blum y. Carter, 63 Ala. 240; Charless v. 
Laniberson, 63 Am. Dec. 457; Williams v. Dorris, 31 Ark. 466; Solary v. 
Hewlett, 18 Fla. 756; Barnes y. White, 53 Tex. 628; Orosholz y. Newman, 21 
Wall. 481. The rule is thus stated in Blum y. Carter, suprcL' '* There must 
be an occupancy in fact, or a clearly defined intention of present residence 
and actual occupation, delayed only by the time necessary to effect removal, 
Dr to complete needed repairs, or a dwelling-house in process of construction. 
An undefined, floating intention to build or occupy at some future time is not 
enough. And this intention must not be a secret, unoommunicated purpose. 
It must be shown by acts of preparation of visible character, or by something 
equivalent to this." 

In some cases it has been held, however, that a bona fide intent to occupy 
premises as a homestead, even though not immediately consummated, will 
be sufficient, if followed by acts of preparation for use, and subsequent early 
nse: Barnes y. While, 53 Tex. 628. Thus where the building on the prem- 
ises was not ready for occupation, but the owner abandoned his home else- 
where and moved his goods into the house, it was held a sufficient setting 
apart of the homestead from that time, actual occupation having begun as 
soon as the house was ready: NeaX v. Coe, 35 Iowa, 407. 8o where the 
debtor was moving into the house, having just completed it, at the time an 
attachment was levied: Fogg v. Fogg, 40 N. H. 282. And where a single 
man, in contemplation of marriage, purchased a city lot, intending to make 
it his homestead, and afterwards married, and he and his wife began, in good 
faith, to inclose, improve, and use the lot with the same end in view, it was 
held snfficient to constitnte it a homestead before any house had been erected 
thereon: ReOot v. Re»ke, 51 Mich. 541; S. C, 47 Am. Rep. 594; 8. C, 16 N. 
W. Rep. 895. On the other hand, it was held in Charless v. Lamberson, 68 
Am. Dec. 457, thct an intent of an owner of land to make it his homestead, 
fonned while the Iowa homestead act of 1849 was in foroe, but not carried 
Into effect until after the repeal of that act, was not saffident to create it a 

34M FuYOK i\ Stone. [Tuxaa^ 

hoioMteacU So whore the owner of realty moved into a house thereon after 
ft Judgment against him, having previously formed the design to make it hie 
homestead, it was held that he conld not retain it as sach against the judg- 
ment: Bcfwher v. CclUnB^ 4 Neb. 494, distinguishing FoQg v. Fagg^ 40 N. EL 
285. And where a declaration of homestead was filed upon unoccupied land, 
and the owner was proceediQg immediately to erect a house thereon, had 
made a contract therefor, and had hauled a part of the materials on the 
ground, it was held insnffloiBnt to constitute it a homestead as against a debt 
existing when the declaration was filed: Dnuker ▼. Romnttm^ 19 Fla. 191, 
eritioising Ntal v. Cbe, 85 Iowa, 407, and Pontes ▼. WhUe. 63 Tex. 028. So 
under the Texas statute an intent to make a lot adjoining the owner's honie^ 
but separated from it by a small alley, a part of the homestead, followed by 
the actual erection of a kitchen thereon, after a sale and oonveyanoe of the 
k>t» was held insufficient to constitute it part of the homestead, in a suit for 
the canoellation of the conveyance, on the ground that the property waa 
bomestsad property, and the wife of the homesteader had not joined in the 
conveyance: ChvMk v. ifetMNoa, 21 WalL 481. "A secret intention of tha 
seller," it was said in that case, oould not affect the purchaser. Under soma 
st a t u t es it has been held, contrary to the general rule, that ooonpation is not 
necessary to secure a homestead. It was so held, and that po s s e ssion only 
was sufficient, under a Tennessee statute, altkoogh it was conceded that oo> 
eupan<7 was essential under a previous statute: Dkkinmm v. Maffor^ II 
Heisk. 515. 

8. Natwe qf Ocempcmqf, — ^The etymology of the word " homestead " shows 
that it is the place of the home or residence of the owner: Co. lit. 4, 6; i 

Thompson on Homesteads, sea 100; Ackkg v. Chamberlain^ 16 CaL 181; Or€g§ 
V. ^oKwidk, 33 Id. 227; EUate qf IkUai^, ^ Id. 176; TVxirf t. ^ortfy, 28 La. 
Ann. 666; ffoitt v. WM, 36 N. H. 166; PhiOeoi t. SmaUey, 23 Tex. 502; 8im^ 
ley V. <?resiii0oo(2, 24 Id. 224; Ihen v. Olemek, 42 Id. 195; ff<nuUm eic S. B. 
Co, V. Winter, 44 Id. 597; Btmher t. Lodse, 15 Wis. 685. Says Mr. Juatioa 
Sanderson in Oregg v. Botiwiekf wpra: " Homestead, both in the oonstitutktt 
and in the statute, is used in its ordinary or popular sense, or in other wordi^ 
its legal sense is also its popular sense. It represents the dwelling-house at 
which the family resides, with the usual and customary appurtenanoes^ in- 
cluding out-buildings of every kind necessary or convenient for family use 
and lands used for the purpoees thereof." The general rule is, theref(»«, that 
the occupation necessary to confer the character of a homestead upon premisei^ 
and to entitle them to the protection of the homestead laws, is occupation as 
a home, residence, or dwelling-place of the debtor and his family: Chcuieu v. 
Lamberson, 63 Am. Dec 457; WiUtany. People, 65 Id. 730; EttaU qfDelaneg, 
87 Col. 176; Fisher v. Corned, 70 IlL 216; Potti \. Daomport, 79 Id. 455; 
Christy v. Dyer, 14 Iowa, 438; Cole v. OiU, Id. 527; SUUm v. Bobfrt^ion, 28 | 

Id. 208; Todd v. Oordy, 28 La. Ann. 666; Meom v. CarU, 5 Minn. 333; TVI/ol- 
$un V. Millard, 7 Id. 518; Acker v. Tnndand, 56 Miss. 30; AuaUn v. Stanley, 
46 N. H. 51; Allen v. Chase, 58 Id. 419; Wiggin v. Btmdl, Id. 329; Cole v. 
Laconia etc. Bank, 59 Id. 53; S. C, Id. 321; Wilson v. Cochran, 31 Tex. 677; 
IJolliman v. Smith, 39 Id. 357; Iken v. Olenick, 42 Id. 195; MilU v. Grant, 36 | 

Vt. 2G9; Morgan v. Steams, 41 Id. 398; Bunker v. Locke, 15 Wis. G3o. The 
premiaea must be the usual and constant residence, and an owner of a home 
and usual residence exceeding the statutory value cannot under the Louisiana 
vtatute move out of such residence temporarily into a smaller iioase with in* 
tent to make it and the land about it his homestead, and accomplish his pur 
pose: Todd v. Oordy, supra, A single man who sometimes occupies a house 

1857.] Pbtob v. Sioioel 840 

m % sleeping pliM^ baWag no aenraote or family, and who ollerwaidi lela the 
praodaea to another, oaanot daim them aa hia homaateadi WHmmr. C oc Ar aw, 
81Tez.077. The teat of rBridenneappUea, alao» whathar thoqneation of boma" 
atead ariaea be t wee n debtor and creditor, mortgagor and mortgagee, Tondor 
and Tendae, or hnaband and wife: EHaU qf Ddemg^ 87 OaL 170. In Miarfa* 
rfp^ the atatnte providea that to antboriae the aetting apart of ahoBMataad to 
the funily of a deoedent^ aomo member of the funily mnat rmida tberat Adnr 
▼. gVarfffwrf, fl6 MJaa. 801 In New Hampahiio it ia bald that nader the ataft- 
«to of 1868 ohildrea oannot bate a homaataad in their lalhar^a land ooonpiad 
by him bat not by bii wi£^ or hia or bar fanOy: fnggkn r. IhimU, 68 K. H. 
828. Amanried woman may, nnder theOdifomia atatnta, obtain a ho maa ta ad 
by her own oocnpanoy of land never realded on by her hnaband, H not appear* 
iag what were tiie oaaaea of hia abaenoe^ or that he bad eataWiahed a home 
al a aw lieie, orbadanyoaierfMBflythanbiawifex OambOUT.Brodt^AlOtL'i^. 

Oooapatkni of praouaea for bnaineaa pofpoaaa ia not ordinarity aooh ooonpa* 
tion aa to impraaa them with the eharaotar of a homaataad. Hanoe land 
ooea p ied only by a giiat-mill or aaw*mill oannot be a liomeataadt Onm t. 
ira A aa rrt ^ 20 Qa. 88; (^Kmefey T.8eott,2Wooda,867; aa,20Bni L. J.88L 
8<H of load ooeapied only by a abop: fVm y. M^mUH^ 28 Vt. 87% or by a law 
aOoe need ooly aa aooh by a aingle man: Stadeg t. O^—ioerf, 2i Tai. 28ii 
Bat nnder the / ^H^*^*ffa at a t nt e, aUowbur a hoaMatead for adeoedanlfa fandly 
to be aet apart oat of ''other laada^" where he ooonpiea no land aa a ho m e* 
atead at hb death, a lot and atorehooae thereon nay oooatitate the faodly 
honeateads HpH^UU^ t. J5roroo<^» 71 Ak. 28L 

Where part of a hnilding oeo api ed primarily aa the owaei^a dwalliag-plaoa 
ii aaad for hnainam par poam, the anthoritiaa apeak a yarioaa langai^. The 
prevailiBg dootrine fi^ howew, that the foot that a boowataadar oaaa for 
oarrying on bn a Jna m one or mora rooma or atoriea, or additiooa to a hooaab or 
opon a lot oeoapied aa a reaidenoe, will not depriTO it of Ita eharaotar aa a 
honuatead: KImk t. KwXU. 87 Aik. 288; Qrtn r. Bottwkk, 88 GaL 220; 
Hogem t. Mamitn, 28 Kan. 551; & C, 88 Aau Bap. 180; Orr ▼. Bhnfft^ 22 
Mieh. 260; KeO^ t. Baker, 10 Minn. 154; Cfar* t. Bkamon, I Her. 568| 
Bameodk r. ifofyaa, 17 Tbk. 562; Pkdp$ r. IKooiMy, Wia. 70; la rt 2Vr» 
MiiV, 2 DQL 890i BSipeoially ao where thara ia an exprom proiWon to that 
efiwtin the atatnta: Bmkk t. QtOggamBt 22 N. W. Bop. 807. Thnapartof 
the building and appartenanoea may be need, and even intondad to be need, 
aa a brewefy : KMk t. JDioUe, 87 Ariu 288; /• rt ItrfaJHag, 2 DiU. 880; or 
aa a liTecy-etaUe: OlaHt r. Sk am o m y 1 Ker. 568; or aa a phyaioian'b oflto 
or printing-oflSoe: KeUif t. Baier, 10 Minn. 154^ So^ in oaae of a fonr-atoiy 
bridt boilding, one atory of whioh ia need for hnainioa poipoeea^ thoag^ the 
whole boilding had the looation, appearanoe, and intenml arrangmanta of a 
boaiDaaa block: Phdp§ r. Boomey, Wis. 70, Dixon, CL J., diaaenting. In 
that caae the ooart aaid: "The ciroamatanoe that the dwelling waa aitoated 
on one of the principal atreeta of the dty, or the fact that ita ezternal ap- 
pearanoe or internal anangement waa like a wholaaale or retail atote, or be> 
oanae it woald be more Taloable aa a place of boainem than aa a reaidenoe, 
-could not affect the qoeation. The caae reata upon the faot as to whether 
the boilding waa really and troly oeoapied aa a dwening-booae for himaoM 
and family; if ao^ they are aecored in the enjoyment and nae of it aa each* 

da, we think, conatitatea a homeatead under the atatnta. Had Booney 
fit not to nae the firat atory at all, or had he oonTerted it into a dining- 
hall, or aleeping apartmenta for boardera, occopying in the mean time the re- 
ef the bnilding for bis dwelling-honaab it woold probaUy not be 

350 Prtor v. Stonb. [Texa^ 

insisted that his omission to ose a part in the one ease, or appropriating a 
portion to the comfort of his boarders in the other, changed the character 
end condition of the house, and took it oat of the operation of the atatote.'* 
Bat where a debtor, on the eve of bankraptcy, moved into a business block, 
not constructed so as to have the appearance of a dwelling-hoase, it was held 
that he could not claim it as a homestead: In re Lammer, 14 Nat. Bank. 
Reg. 460. That case arose in the same state as Phdp9 v. Booney, 9 Wis, 70l 
In Iowa it is held, contrary to the doctrine of other cases, that where one or 
more stories of a building are used for business purposes, and the rest as a 
residence, it must be partitioned horiaontally, and only the residence portion 
protected as a homestead: Rhodes v. McComdck, 4 Iowa, 368; S. C, 68 Am, 
Dec. 663; Mau/ield v. Mcuudm, 59 Iowa, 617; S. C, 13 N. W. Kep. 652; 
John$on y. Moeer^ 24 Id. 32; except where the statute exempts, up to a cer- 
tain limit, the part of a building used for carrying on the homesteader's 
ordinary business: SnUth v. QtUggana, 22 Id. 907. As to whether or not a 
homestead exemption will cover a distinct building on the same or an adjacent 
lot used for business purposes, see pott. 

In several of the cases above dted the parts of the buildings in question 
used for business purposes were not used entirely by the homesteader himself, 
but were partly rented to others: Rhodes v. AfeCormick, 4 Iowa, 368; MayMd 
V. Maasden, 59 Id. 517; S. C, 13 N. W. Bep. 652; Kelly v. Baler, 10 Minn. 
154; Phelps y. Rooney, 9 Wis. 70. The general rule unquestionably is, that 
buUdings rented to others, not servants to the lessor, cannot oonatitute the 
lessor's homestead, nor part of it, even though erected on the same lot: KaaUr 
v. Me WiUktmSf 41 Ala. 302, approved in McOomuiughy v. Baater, 55 Id. 379; 
BeeJ^s EsUUe, Myriok's Prob. 59; ^fcrs v. Brusch, 13 Iowa, 371; HoiU v. WM, 
36 N. H. 158; IVade v. Wade, 9 Baxt. 612; Wilson v. Cochran, 31 Tex. 677; 
True V. Morrill, 28 Vt 672; Sehqjffen y. Landauer, 19 N. W. Bep. 95; Cfreeley 
y. SeoU, 2 Woods, 657; S. 0., 2 Cent. L. J. 361. So where a double house 
with distinct entrances (though it may be with a common yard) is partly 
occupied by the owner, and the other part let to a tenant, only that occupied 
by the owner can be claimed as his homestead: Tkman y. Creditors, 62 CaL 
286; S. 0., 15 Bep. 362; Dyson v. Sheley, 11 Mich. 527. But this doctrine, 
as we have seen, has not been applied in some cases where different stories of 
a building occupied as a residence have been let to others. Noi does it apply 
where rooms in a building, occupied primarily as a dwelling, are let to lodgers 
or boarders; or in other words, where the owner keeps a lodging-house, board- 
ing-house, inn, or hotel in his dwelling: Aeldey y. Chamberlain, 16 CaL 181| 
Lazell v. Lazell, 8 Allen, 575; Mercier v. Chase, 11 Id. 194; Goldmany. Clark, 
1 Nev. 607; JIarriman v. Queen Ins, Co., 49 Wis. 71. Otherwise where the 
property is used primarily and chiefly as a hotel, though the owner resides 
there with his family for the purpose of carrying on the business: LaughUn 
y. Wright, 63 Cal. 113. See, as to whether or not adjacent but disconnected 
tenements rented to others will be included in the lessor's homestead, the 
next division of this note. Property occupied only for purposes of religious 
worship cannot be claimed as a homestead, as in case of a pew in a church: 
True V. Morrill, 28 Vt. 672. 

Extending Homestead Bight to Adjaoert ob NoN-coNnouonB Prem- 
ises. — ^A homestead right no doubt includes whatever lands or appurtenances 
are connected with the home and convenient for its enjoyment: MiUs y. QraiU^ 
36 Vt. 269; Beinbach v. Walter, 27 111. 393; Oregg v. Boslwick, 33 Cal. 227; 
Qreidey y. 8coU, 2 Woods, 657; S. C, 2 Cent. L. J. 361. We have already 
discussed the question as to how fax such right will cover parts of the home- 

• < 

1857.] PfiroB V. Stone. 851 

■tead building not in tlie actual occupancy of the homesteader, or deToted to 
naes other than those of mere residence and home life; bat will it extend to 
disconnected tenements, or adjacent or non-contignous lots or tracts, espe- 
cially where they are rented to others, or applied to pnrpoaea not immedi- 
ately connected with the enjoyment of the home? In a number of cases it 
has l^en determined that a homestead exemption will not oorer buildings 
adjacent to the homestead, either upon the same or an adjoining lot, if not 
in the actual occupancy of the owner, but let to others: AfhUm v. Ingle, 20 
Kan. 670; S. C, 27 Am. Bep. 197; Kurt y. Brtueh, 13 Iowa, 371; HoUt v. 
Webb, 36 N. H. 168; Wade v. ffcufe, 9 Baxt. 612; Schqfen t. Landauer, 19 
N. W. Rep. 95; QreOe^Y, ScoU, 2 Woods, 657; S. C, 2 Cent. L. J. 361; 
but in Nolan ▼. Reed, 38 Tex. 425, it is held that the erection of houses for 
rent on a homestead lot does not destroy the exemption; and see Hancock r, 
Morgan, 17 Id. 582. So in Klenk v. Knoble, 37 Ark. 296, it is held that the 
homesteader may, without affecting his rights, occasionally rent out parts of 
the premises which he can spare. In Illinois it is held that where a home- 
steader resides upon his homestead lot, and such lot with the improvements 
is not above the statutory yalne, the entire lot is exempt, without regard to 
the use to which other parts of the lot may be put, as by maintaining a mill- 
stone, or the like, thereon: Hvhbdl y. Canady, 58 111. 425; Stevene t. BotUnge- 
woorihy 74 Id. 203. So, under the Nevada statute of 1865: Smith v. Stewari^ 
13 Kev. 65; contra, in WisoonsiD, Caeeelman v. Packard, 16 Wis. 114. In 
Vermont a blacksmith-shop on the homestead premises, but separated from 
the house by a highway, was held to be part of the homestead: Weai River 
Bank v. Oale, 42 Vt. 27; and in Texas a storehouse on the homestead lot, in 
which the owner carries on his business, is part of the homestead: Moore v. 
WkUiB, 30 Tex. 440. So a mill adjacent to the reddence of the mill-owner 
may be exempt as part of his homestead, under the Florida statute, but not 
ao a farm cultivated as secondary business: Chreeley v. ScoU, 2 Woods, 657; 
8. C, 2 Cent. L. J. 361. On the other hand, in the same case it is held that 
a farmer's homestead will not embrace a mill erected on the farm; and in 
Mouriqtumd v. Hart, 22 Kan. 594, S. C, 31 Am. Bep. 200, a public grist-mill 
adjoining the owner's farm, but not inclosed with it, was declared to be no 
part of his homestead. Where the owner of two lots resided on one of them 
and put up a building covering all the other lot and part of the residence lot, 
it was held, in Michigan, that the building and the land covered by it con- 
stituted no part of the homestead: Oenep v. Maynard, 44 Mich. 678. The 
general doctrine is, that a homestead may consist of adjoining lots, blocks, or 
tracts, used together as part of the homestead: Andrewe v. Hagadon, 54 Tex. 
571; Arto v. Maydole, Id. 244; Englebrecht v. Shade, ATI Cal. 627; Oregg v. 
Boeiwick, 33 Id. 227; Darby v. Dixon, 4 111. App. 187; Clark v. Shannon, 1 
Kev. 568; Bunker v. Locke, 15 Wis. 635; Lowell v. Shannon, 60 Iowa, 713; 
Thornton v. Boyden, 31 111. 200. Thus an adjacent vacant lot used for drying 
clothes, as well as for an approach to the homestead dwelling, may constitute 
part of the homestead: Englebrecht v. Shade, 47 Cal. 627. So, an adjacent 
block used as an approach to the house, as well as for purposes of ornamenta- 
tion: Arto V. Maydole, 54 Tex. 244. So in case of two lots or tracts farmed 
together in the same indosure: Thornton v. Boyden, 31 IlL 200. The ques- 
tion ia one of fact, depending upon the intent and the nature of the use: Arto 
V. Maydole, 54 Tex. 244; Andrewe v. Hagadon, Id. 671; but an adjoining lot to 
that upon which the homestead residence is, though included in the same in- 
dosure, is no part of the homestead, where the residence lot is w(»th mors 
than the statutory sum: Hay v. Baugh, 77 IlL 501; Oardner t. Eberhari, 8) 

352 Prtor v. Stone. [TexasK 

Id. SIC The hooiMlaad need not be drBmnacribed bjfenoee: Oregg ▼. Bo>^ 
wmA 33 GeL 227; and it k Md to be no objeetkm thet the diffisfeiit parte cl 
the homerteed are eeperated by imagiiiaiy linee, or highways, or atreame e^ 
water: X>arAy t. DkBom^ 4 m. App. 187; CSufi t. SkiammM, I Kev. 568; ITeA 
RkMrBamkr. Ooie, 42 Vt. 27; BmUber Y.Loebe, 16Wia.835; EMate qf De- 
Umep, 37 CU. 176; Ongg t. Bottmck, 33 Id. 220; bat aee Gardmr t. A«r. 
Aot, 82 nL 316. 

But it is held in aome d tlM caasa in which it ia admitted that the parte ol 
the homestead may be thus separated, that it mnat be in one oompact body, 
and cannot consist of non-oontigoooa tnote or kts: Bunker t. Loekt, 15 Wis. 
635; andiaanamberof caassitiaheldlliatnflm-cQntigQoas paroela of land can- 
not conatitnte one and tbeaame homestsad, even though tliey both oontribote 
to the aopport <tf the Iwme; WeMen t. PrnfUB^ 66 Am. Deo. 730; Kremn t. 
Uau^ 15 Minn. 116; ufdomsT. Jemkk^ 16Giny, 146; Bamitd t. EMet^ 12 Kan. 
257; TVm T. iforriB. 28 Vt. 072; i#«& t. Oroal, 86 Id. 209; as where one of 
the lots or tracte is ossd for obtaining foe! for the residence npon the other, or 
the like: Ifatters t. iVoplc» TVne ▼. MarriU^ Adamu t. JaJam^ Bumktr t. 
Loeke^ mtpnu Bat the oontnoy is bsld nnder the statates of a nnmber cf 
the states: Partes r. Qvj^fay, 62 lio. 488; itoten v. X»ear6on^ 46 N. H. 43| 
Mfartm y. Hmi^km. 67 K. C. 283; Magko t. CoUoih 60 Id. 289; Haneodt ▼. 
Margmh 17 Tez. 682; WUSmm r. BaU, 33 Id. 212; BagjUmd v. Boffm, U 
Id. 617. In sevensl of theee statea this is so by Tirtae of express provisioni 
in the statutes. 

The doctrine <tf the principal case, and of the other Taxaa easeeaboTo cited 
apon this pqtnt» has been modified somewhat by later adjndioatifflns. In/lmiy. 
OUmd^ 42 Tez. 195b it was held thataatore onaaepanitelot serccal hundred 
yards away from the residence lot» though contribntiQg by ite income to the 
support of the funily» was not part <tf the ho mes te ad; and that thou^ the 
homestsad mj^^ cooaist of one or more lots^ they must in faet form part and 
parcel of the homestead bybeingconneeted with or oontribating to the comfort 
of the mansion-house as a honie by particular nae or appropriation. Bespeot- 
ing the principal case, the court said: "Wehavebeenledtodisoomtheqnee- 
tion pr eee nt e d in this case Uins elaborately, not by reason of ite intrinaie 
difficult, or any doubt on our part ae to ita proper determinttion, but out of 
our great rmpeot for the seemingly contracy opinkm of the leaned and dis- 
tinguished Juristi who was the fiist chief justioe of thie court, as may be in- 
ferred from eipressions used by him in the caee of iStoae t. iVyor, 19 Tez. 
372, and also from the fact that it appears from references to this esse, in 
subseqaent opinions of other members of this courts that it seems to haye been 
supposed that the homeetead exemption had been held in that caee to haye 
a broader scope than we think can be giyen it: Moort y. WhUu^ 90 Id. 440; 
WiUiauM y. HaU, 33 Id. 212; Rogen y. Raglamd, 34 Id. 617; Ckurh y. NtOtm, 
38 Id. 422. An examination of the cese of Skmt y. Pryor will show, bow- 
eyer, that the lot in qaestion in that case was applied, to eome extent at leasts 
to homestead porpoees. And in most, if not all, of the subeequeiit caeee, 
though apparently approying the broad rule which seems to be sanctioned by 
Judge Hemphill, that the lot, if it is neceesary to the oonvenience or sQcoeee 
in boriitess of the hnsband, though entirely disconnected with the homestead, 
is within the exemption, the facte do not call direotiy for the deciBion of the 
qaestion. It may also be obsenred that the caaee of ffaneoek y. Morgaan^ 17 
Id. 582, and Methery y. Walker, Id. 593, which are the only anthoritiee cited 
in 8Ume v, Pryor^ do not support this proposition. In the last of theee caeee 
the lot in queation was held not to be a part of the homeetead, and tb^ first 

1H57.] Ellis i;. MATBXwai MS 

■wra^ d«eidM thai the «reotioii of » naiw home vpoii » part «C tha lol| and a 
iBinponry leMuig of the old hoon, after the funflj had mored from it into 
the aew one, did not exclude that part of the lot npon whioh the old hooaa 
was ntoated from the proteotion of the homeatead exemption, and aabjeot it 
to the demands of creditora." Speaking npon thia aobjeot, "hb, Thoupaon 
yery tersely remarka that '* the dootrine of the early Tezaa eases, that a man 
can have a liomestead seattersd all over a town, r^gardleas of intsTrenlng 
streets, alleys, lots, or blocks, haa been exploded in that state, denied in 
Kansas, and cannot be regarded aa aoond law anywhere:*' Thompson <m 
Homeateads, sec. 117. The pr ese n t Tezaa eonstitntion proTides that an 
nrban homestead may embrace not only the lot on which the owner's resi- 
dence is, but that also upon which he ** exercisss his calling or bnsiness," he 
being the head of a family; and it ia held that the lota nsed not be adjacent: 
If Ofer T. iffliie, 56 Tex. (»9; ifeAmaU T. CkM^iMI, 67 Id. 413. Bntimdsr 
thia doctrine, where a druggist lives on cue lot, has a drag atore on another, 
and a warehouse on a third, incidentally nsefol to the dmg store for the stor- 
age of drags, it is held that the latter lot ia not exempt aa being nsed to ex- 
ercise the calling or bnsiDeai: McDonald t. Campb^, svpro. 

Ubbah Aaj> Bubal HoMSBTiAoe cannot be blended ordinarily, nnder the 
Tezaa atatnte, and where one owna land in a town and also ontaide land, if 
he resides within the town, he cannot daim the ontaide lands aa part of his 
homeatead, and sice eersa; Ihen ▼. Oleniek, 42 Tez. 195; Boffen t. Bagla^ 
42 Id. 422; Evatu v. Wamaek, 48 Id. 290; KeUh v. Hindman, 57 Id. 42ft. 
The burden of proof in snch a case is npon the homesteader to establiah any 
exception in his favor: Keiih v. Hindman, svpro. A aomewhat similar doc- 
trine is held in other states: 0/tver y. Swowdaa, 18 Fla. 823; S. C, 43 Am. 
Rep. 338; SaraJuu v. Fetdont 5 Kan. 592. That the character of a rorsl 
homestead is not changed by extending the limits of a town over it without 
some act on the part of the corporation, see Taylor y. BauhMn^ 67 Am. Dec. 
642, and note; FMty v. Dietrkk, 12 Iowa, 516; MeDaniA y. Maet^ 47 LL 
500. But where a rnral homestead does become urban by being divided into 
lots, lots retained for purpoees of sale and speculation form no part of the 
homestead: Clark y. NoUm, 38 Tez. 416. 

The distinction between these two olssses of homsatsada ia ia^wrtant only 
wfaera thers is a difflsrence in the statntoty y a l n a t ion, or in the nods «C eatl- 
Btttiag the esla&t or yahia. 

ESxiUB V. Mathewb. 

[19 Tbias» 800.] 

WxaKVHi ov Mnn> mm vor IvoiAPAoraAXB Pabsht ibooi Omrnaov* 
* mo, if he be not wm compm mairtr, but it may be a material dronm^ 
stsaoe in establishing an inf erenoe of nn&ir praotaoe or imposi t ion. 
Dbd ov Out Bziootid bt Aoed Wokait ov Wsak ob iMwon.! Uhdbb* 
nairsiHO, conveying her whols prop er ty to csie of her ehildron, most ba 
set arfda if thars ia evidenoe that any uiarspieasiitatioB or impoaitloo 
was piaotioad vpoB her. 

Mr BsnuHuneanov id Aqbd abb TuBBCifiiB Wokav Rjlbuu t uwi 
Dbbd of gift of her whole pivp a rty to a daaghtv» made aA the tioM by 
te danghtsrli husband in her prssioa, that the pmp s i^ woold aol 

854 Ellis t;. Math£W& [Texaa» 

be takieii oat of th« mother's po Mena ion daring her lif e» Is a nuhterial dr- 
oamstanoe in determining whether the deed vna prooared by imad or 
impoaition, where the daoghter and her hosband rae to reooyer the prop- 
erty ivom the mother; and it is error to ezdade consideration of it from 
the Jnry. 
IiarBVOTioN WiTHDaAwma Qitbstion ov Fraud or PBoainmia "Dan 
IBOM Imbioilk woman from the jary, and leaving them to detenniBe 
solely the qaestion of mental eapaoity, is error if there is any eridenos 
of frand or imposition, even thoagh it appears from other parts of the 
ohaige that the coart did not intend to take the entire eonnderstion ef 
the qaestion of tend from the jary, anlesi the error is dearly and 
. pletely oorreoted by the ohaige as a whole. 

AvraUi from a judgment for the plaintiffii in an action to 
lecoTer certain slaveB. The action was brought by Mathews 
and wife against Mrs. Ellis and her son, on whose farm she 
liyed. The slaTcs were claimed under a deed of gift of them 
executed to Mrs. Mathews by Mrs. Ellis, her mother. The de- 
fense was that the deed was procured by fraudulently taking 
advantage of the grantor's age and mental and bodily infirmi- 
ties. It appeared that at the time of the execution of the deed 
Mrs. Ellis was sereniy-fiye or eighty years of age, and in feeble 
healthy and that the deed embraced her whole property. The 
eyidence for the defendants tended to show, also, that she was at 
the time imbecile to such a degree as to be incapable of trans- 
acting business, though this was contradicted by the plaintiffiB* 
witnesses. One of the defendants' witnesses, a subscribing 
witness to the deed, testified that both the plaintiffs were pres- 
ent at the execution of the deed; that when the deed was 
explained by the witness to Mrs. EUis to haye the efEact to take 
the slayes from her control immediately, she declared she would 
not sign any instrument which would depriye her of the con- 
trol of the properly during her life, and that the plaintiff 
Mathews, in his wife's presence, said to Mrs. Ellis that they did 
not intend to take the property from her control and possession 
during her life, and she then consented to sign the deed. There 
was eyidence as to Mrs. Ellis's mental and physical condition 
for seyeral years after the deed was executed, and also as to 
other matters which it is unnecessary to state. The charge of 
the court, after stating the efiect of the deed if yalid, and that 
it was contested by the defendants as haying been obtained by 
fraud and imposition, when the grantor's mind was so impaired 
by age, disease, and infirmities Uiat she was incapable of con- 
tracting, continued as follows: '' Some of the witnesses haye 
spoken of conyersation between the parties to the deed of gift. 

1867.] Elus v. Mathews. 356 

lending to show that Vis. EUie made a Terbal reeervation of a 
life estate to herself in the negroes; this joa wiU wholly 
exclude from your consideration, as no such claim is set up by 
Mrs. Ellis in her answer. And the only question for your con<* 
■ideration is this: Was Mrs. Ellis, at the time of the making 
of this deed of gift, of sound mind, and capable of making a 
binding contract? and if not, did she, by her sabseqnent acts 
and conduct, ratify and confirm this deed of gift to her 
daughter? If you conclude that the execution of this deed of 
gift was her free and Toluntary act, that she was of sound mind 
when she executed it, capable of making a contract, and unin- 
fluenced by any fraud or deceit by the plaintijOTs, then you should 
find for the plaintiflh. Or if you beUere Mrs. Ellis was labor- 
ing under such mental imbedliiy at the time of the execution 
of the deed of gift as to render her incapable of making a Talid 
oontract, or if at the time of its execution she was OTcrreached 
by the deceit or fraud of the plaintiffs, and that subsequently^ 
when she was of sound mind, and when she was not acting 
under the influence of fraud or deceit, she freely and fully bj 
her acts recognised the right of the plaintiffs under that deed, 
then you should find for the plaintiffs." After referring to the 
evidence of an alleged subsequent ratification, the charge con- 
tinued: "But if you believe that her mind was so infirm and 
unsound at the time of the execution of the deed of gift as to 
disqualify her from understanding what she was doing, or tbat 
the plaintiffs overreached her by fraud and deceit, and that aha 
did not afterwards, by her acts or otherwise, ratify the deed of 
gift, then you should find for the defendants." The defendanta 
excepted, and after verdict and judgment against them, appealed. 

Yoakum and Taylor, for the appellants. 
B. A. Beeves, for the appellees. 

By Court, Wheeleb, J. If the plaintifb induced old Mrs. 
Ellis to sign the deed of gift by declaring that they did not in- 
tend to take the slaves out of her possession during her life, 
thus causing her to believe that she was not to be deprived of 
their service, and they intended the contrary, can it be doubted 
that it was a deceit? If it was upon the faith of this represen- 
tation that she executed the deed, and but for this she would 
not have signed it, must it not bean act of bad faith afterwards 
to violate the promise or falsify the representation by dispos* 
sessing her? It cannot be said that she ought not to have 
trusted to the representation. She had la right to repose unre- 

856 Ellis v. Mathew& [Texad^ 

ienred confidence in those standing in so near a relation. 
Besides, she was old and infirm, and feeble in body and mind. 
And although the law does not undertake to determine the 
Taliditj of the acts and contracts of men by the greater or less 
strength of their understanding, and mere weakness of mind 
deep not incapacitate a party if he be not turn compos meiUu^ 
jet weakness of understanding may be a material circumstance 
in establishing an inference of unfair practice or imposition. It 
gives additional force to circumstances leading to the inference 
tuat a deed has been obtained by fraud or imposition, or undue 
inliuence; for, says Judge Story, ** although a contract made by 
a man of sound mind and fair understanding may not be set 
aside merely from its being a rash, improyident, or hard bar* 
gain, yet if the same contract be made with a person of weak 
understanding, there does arise a .uitnral inference that it was 
obtained by fraud, or circumyention, or undue influence:" 
Story's Eq. Jur. , sec. 239. And it is immaterial from what cause 
such weakness arises, whether it be from temporaiy illness, con- 
stitutional despondency, general mental imbecility, or the nat- 
ural incapacity of early infancy, or the infirmity of extreme old 
age: Id. 234, 286; 2 Kent's Com. 451. 

When a person, circumstanced as the donor in this case was, 
makes a deed or does an act by which she deprives herself of all 
her property, and even of a servant to wait upon her, and renders 
herself wholly dependent on others for support and every com- 
fort, it can but be regarded as improvident; and when to that 
is added mental weakness and imbecility, it naturally awakens 
attention and scrutiny into the means which have caused the act, 
and gives force to every unfavorable appearance in the case; and 
if there is evidence that any misrepresentation or imposition has 
been practiced upon a mind so enfeebled, it would certainly 
warrant the setting aside the deed on the ground of fraud, aris- 
ing from imposition and undue confidence or influence. The 
evidence upon this point was certainly entitled to its weight 
with the jury in deciding upon the issue of fraud. But they 
were instructed by the court wholly to disregard what the wit- 
ness had said of ''a conversation between the parties to the deed 
of gift, tending to show that Mrs. Ellis made a verbal reservation 
of a life estate to herself in the negroes," as no such claim was 
set up by Mrs. Ellis in her answer. The evidence was not in- 
tended to establish the creation of a life estate by parol, but to 
show that Mrs. Ellis had made the deed under the belief and 
expectation that she would not be deprived of tbi use of the 

1857.] Ellis v. Mathxw& 357 

properly duxing her life, indnoed hj the deolazatioiiB and prom- 
ise of tiie doneefly and thus to sustain the defense that it was 
obtained by deceit and imposition; and in this Tiew, the eridenoe 
^as proper to be taken into consideration hy the jniy and gi^en 
the full weight to which, in their opinion, it was entitled; and it 
was error to ezdnde it. 

Again: the conrt instmoted the jniy that the only question 
for their consideration was this: '' Was Mrs. Ellis, at the time 
of maldng this deed of gift, of sound mind, and capable of 
making a binding contract? and if not, did she, by her subse- 
quent acts and conduct, ratify and confirm this deed of gift to 
her daughter ? *' This was Tirtnally withdrawing from the juiy 
the consideration of the question of imposition or fraud, and 
confining them to the single question of her capacity to contract, 
or her ratification subsequently of her act. This certainly was 
error. It is evident, from other portions of the charge, that the 
court did not intend wholly to exclude from the consideration 
of the jury the question of fraud. But such was the manifest 
effBot of this portion of the charge; and its tendency as a whole 
was to diirert their minds from that inquiry, and make the case 
turn mainly on the question of mental incapacity, or the subae« 
quent conduct of the donor, supposed to amount to a ratification 
of the deed. These were legitimate subjects of inquiry; but 
they were not the sole or the principal questions for the consid- 
eration of the jury. If the effect of this part of the charge had 
been completely corrected by other instructions, clearly and 
distinctly submitting to the jury the question of imposition and 
fraud, this error might haye been obriated. But this was not 
the case. Nor was tiiere anything in the charge which was cal- 
culated to have the effect of correcting the error of baring with- 
drawn from the consideration of the jury the representations 
made to Mrs. Ellis, at the time of executing the deed, to the 
effect that she should have the use of the property during her 
life. For these reasons, we are of opinion that the charge of the 
court was erroneous, and calculated to mislead. The judgment 
is therefore reyersed and the cause remanded. 

Beyersed and remanded. 

IMBSQILIT7 AS OBOtTHp OF Bsuxf AOAnrsT Dbsd OB OiHSE OosnuoTt Set 
Hm T. NtM, 66 Am. Dso. 266, and osms and notos la tfab wriM lefefnd to 
la the DOta thflti0fe(k 

358 Alexander u Kennedy. [Texaa^ 

Alexandeb v. ELennedt. 

(19 TSZAI, 488.] 

general mle. 
Oo*HBiB*8 PoflSEssioif Bboomes Advbbsb TO Othbb Go-HflBS by acts or 
deolarations repelling the presampUon that the posaeation 11 in hit chas^ 
acter as co-heir, and clearly showing a daim of ezdnsive rigfa^ ho^ tha 
hostile intent of the poesession moat be manifeated by uioce nneqiiivoocS 
acta than are neoeeaary where there is no priyity belwebn lae partiea. 


OF Anotheb Go-tenabt for a great length id 'ak^ ac<*ompamed by no* 
torious acts of exdnsive ownership. 

Patmbnt 6f Tabu bt Co-hbib zb Powwr^ir pobs not Estabubb Ad- 
vbbsb Chabaotbb of the poaseaston v: a^jauut his oo-heirs, when stand- 
ing alone, but is a cironmatanoe vhLfh with others will show that faet. 

Qbb Go-hbzb Lbayiko Common FzyiKBon with Othbb Co-HsiBa for mon 
than statutory period, under circumstances excluding the presumptiofc 
that they intended to daiv adversely, or, at least, th&t he could hava 
reasonably supposed they bO Uitended, will not bar his right undar the 
statute of limitationc^ ^.ithough they haye paid the taxes for tha whc2e 

Ebbob to revenc r judgment for the defendants in a suit for 
the partition oV certain slaveB. The opinion sufficiently states 
the case. 

MUsr for tlce appellant. 

J. A T» Murray, for the appellees. 

£/ Court, HEMPHiLLy 0. J. This suit was brought March 14t^ 
l<5l>5, lor the partition of certain slaves who had been delivered 
by the defendants, Kennedy and vnfe, to their daughter, after 
her intermarriage with Alexander, the plaintiff. The statement 
of facts, after reciting the delivery of the slaves as above, and 
t^eir value, continues to the effect that the negroes were taken 
by Mrs. Alexander to her home, and after remaining there vrith 
her and her husband about two years, owing to Mrs. Alexander's 
liealth, she and her husband returned vnth the negroes to de- 
fendants, where Mrs. Alexander died in June, 1851, vnthout 
children. Mr. Alexander left the property in possession of de- 
fendants, and they have paid taxes on them ever since, claiming 
them as their own. The defendants pleaded the statute of limi« 

The court charged, in effect, that if the slaves remained in 
possession of defendants after the death of their daughter, with 
the admission on their part of the interest of the plaintiff, the 
statute of limitations would not begin to run until after a de- 

I bo7 J Alexandeb v. Kennedy. 859 

manr! and refasal to deliver; but if the jury beliered that thej 
had posseBsion for more than two years preyious to the institution 
of this suit, claiming the title and exercising public and notori- 
ous acts of ownership oyer them, their title is complete, and the 
|ni7 must £nd for defendants. The jury found for defendants, 
and the plaintiff has brought up the cause by writ of error. 

Mrs. Alexander having died without children, her husband 
was entitled to one half of the slaves, and the defendants, as 
father and mother, to the other half, in equal portions. By the 
statute of distribution, the plaintiff and the defendants weie co- 
|iarceners; and the question is, whether the possession of defend- 
ants was so adverse to the plaintiff, he being a co-heir, as to 
support the plea of limitation. No question has been raised as 
to whether there should not have been administration on this 
estate, and whether co-distributees could hold adversely to each 
other until after the close of administration. Admitting that 
there was no necessity to administer (there being perhaps no 
debts, or the debts being paid), and that the rights of the parties, 
as heirs, could not be disturbed or superseded by a paramount 
claim under administration, it would seem that the proof in this 
case was not sufficient to authorize a verdict for defendants. 

That the possession of one co-heir or co-tenant is the posses- 
cdon of the other co-heirs, and is taken in trust for their benefit, 
is an elementary and indisputable principle of law. But this 
possession may become adverse to the other heirs by acts or 
declarations repelling the presumption that the possession is in 
the character of a co-heir, and which show clearly a claim of 
exclusive right. One tenant in common may disseise, or hold 
adversely to another tenant in common; but the hostile intent 
of the possession should be manifested by acts of a more un- 
equivocal character than would be necessary in ordinary cases, 
where there is no privity of estate between the claimants to the 

The difference, says Judge Story, between the two cases is, 
ihat acts which, if done by a stranger, would per ae he a dis- 
seisin, are, in the case of tenancies in common, susceptible of 
explanation consistently with the real title. Acts of ownership 
in tenancies in common are not necessarily acts of disseisin. It 
depends on the intent with which they are done, and their noto- 
riety. The law does not presume that one tenant in common 
intends to oust another. The fact must be notorious, and the 
intent must be established by proof: PrescoU v. Nevera, 4 
Uason, 826-331; see Corwin v. Davidson, 9 Cow. 24. 

860 Alexander t;. EsNinsDT. [Texaa^ 

In PennsylTania it has been held that« to proye a tenant in 
common has claimed the whole excIoaiTel j, it is not neoeesaiy to 
show that he has made an ezpiess declaration to that effect. 
This was stated in Lodge y. PaUerson, 8 Watts, 74 [27 Am. Dec. 
835]. It was said that the hostile intent mnst be manifested bj 
ontward acts of an unequiyocal kind; that to constitate a dis- 
seisin, it neyer was held that notice should be sent to the dis- 
seisee, or that it mnst be proyed that he had knowledge of the 
entry and ouster committed on his land. 

In the subsequent case of Hart t. Oregg, 10 Watts, 185, it 
was ruled, in effect, that the mere entiy of a co-heir into land of 
the ancestor claiming it all, and taking the rents and profits for 
twenfy-one years (the term of limitation in Pennsylyania), is no 
disseisin of the other heirs; there must be some plain, decisiye, 
unequiyocal act on the part of the heir so entering, amounting 
to an adyerse and wrongful possession in himself, and a dis- 
seisin of the others. In this case, there was eyidence of facts 
within the twenfy-one years which amounted to a recognition 
of the rights of the other co-heirs. 

In a succeeding case, Law y. PaUerwn,^ 1 Watts & S. 184, the 
effect of taking possession by one of the co-heirs, and reoeiying 
the profits for his own benefit during twenty-one years, the term 
of limitation, is learnedly discussed. It is said that to proye a 
tenant in common has claimed the whole exclusiyely needs not 
his express declaration to that effect; for it may be shown as 
clearly from his acts as from his words. For this purpose, it 
will be sufficient to show that he took possession of iiie whole 
of the land, as if it had been his own exdusiyely; that he was 
in the sole and uninterrupted possession for more than the time 
of limitation; that he receiyed the rents and profits without ao* 
counting to his co-heirs for any part thereof, and without any 
demand haying been made by them for such accounting, or eyi- 
dence of his haying acknowledged the claims of his co-tenants. 

It seems that the notion once entertained in regard to what 
was necessary to constitute an actual ouster by a tenant in com- 
mon has giyen way, and that an undisturbed and quiet posses- 
sion for a certain length of time is sufficient ground for the jury 
to proye an actual ouster: MUUken y. Brovm^ 10 Serg. & B. 
188. In Pennsylyania such quiet possession and exdusiye claim 
of the whole for the period of limitation is eyidence from which 
the jury may presume an actual ouster: See la^t cases cited. 

In Doe y. Prosser^ Cowp. 217, it was said that the possession 
of one tenant in common, eo nomine as tenant in common, can- 

1857.] ALKXA2IDEB V. KENNEDY. 861 

not bar his oompanion, because such possession is not adTerse 
to liis right, bat in support of the common title, and by paying 
him his share, he acknowledges him to be his co-tenant. Nor, 
indeed, is a refusal to pay of itself sufficient irithout denying 
his title. But if upon demand of his co-tenant of his moiety 
the other denies to pay, and denies his title, and continues in 
possession, such possession is adverse. But in the report of 
this case by Lord Mansfield, on the rule to show cause why a 
new trial diould not be granted, it is shown that there was no 
express denial of plaintiff's title by defendant, or refusal to pay 
him a ahare of the rents and profits. Nothing appeared except 
that one tenant in common had been in possession for thirfy- 
six years, without claim or demand under the other tenant in 
common; that no actual ouster was proved. The court in« 
strucied the jury that they were warnuited, from the mere length 
of time, to presume that the i>osse8sion was adTerae. His lord- 
ship continued to be of the same opinion, that some ambignily 
had arisen from the tenn '* actual ouster," as if it meant some 
act accompanied with real force, and as if turning out bj the 
shoulders were neoessaiy. But that was not so. A man may 
come in bj rightful possession^ and yet hold oyer adyersely with- 
out title. If he does, such holding oyer, under dronmstances, 
would be equiyalent to an actual ouster: Angell on Limitations, 

In the aboye case, the co-tenant had held for sixteen years 
longer than the term of limitation under the statute of 21 
James I. The current of authorities is in support of the doc- 
trine as laid down in the above case of Doe y. Proner, Oowp. 
217; yis., that mere possession of a tenant inconmion for a 
great length of time would be evidence on which a jury may 
presume an actual ouster: Parker y. Proprietors etc,^ 8 Met. 100 
[87 Am. Dec. 121]; Jack»m v. WhUbeck, 6 Oow. 682; Ohamhen 
V. Pleak, 6 Dana, 482 [82 Am. Dec. 78]. In Pennsylvania it 
seems well established from the cases cited that the sole, undis- 
turbed possession of one tenant in common, receiving the rents 
and profits for himself, vnthout recognition of the claim of his 
co-tenants, will be evidence from which an ouster may be pre- 
sumed. In the case of Law v. PaUersoriy 1 Watts k 8. 184, 
in which this rule was distinctly affirmed, the acts of owners) up 
by the tenant in common in possession were very unequivocal; 
such as, for instance, leasing the land in his own name and re- 
ceiving the rents for twenty-three years, without any claim by 
the other tenant in common, erecting a dwelling-house and 

362 Alkxakder v. Renkedt. [Tezaa^ 

other improTementSy paying the tazesy and even paying the pur- 
chase money for the land. 

If the mere poBsession by a co-heir or co-tenant, with the ex- 
ercise of notorious acts of exclnsive ownership for the period of 
limitation, be a circumstance from which ouster may be pre- 
sumed, the inference of adverse possession and ouster is very 
strong against the plaintiff in this case from the fact that nearly 
twice the statutory term of limitation had intervened prior to 
the bringing of suit. But in this case, the evidence of exclusive 
claim is not satisfactory. The suit proceeds on the supposition 
that the slaves had been the property of the vrafe. In conse- 
quence of her ill health, she and husband returned with the ne- 
groes to her father's house, where she died. The negroes were in 
the possession and under the control of the husband during the 
life of the vrife, and at her death, he being already in posses- 
sion, being also a co-heir vrith defendants and entitled to ad- 
ministration, was the better entitled to remain in possession. 
But it is said he left them in possession of defendants. If this 
means that he abandoned the possession, he was, of course, pre- 
cluded at the end of the two years. But if it mean that he, 
having the best right, or even an equal right, left them with his 
co-heirs — and this is the more rational interpretation of the lan- 
guage — ^it seems that there was a superadded confidence and trust 
reposed, in addition to that arising by operation of law from the 
capacity of defendants as co-heirs. 

Again: the acts of ownership of the co-heir, viz., those 
which show the possession to be in an exclusive right, must be 
very unequivocal. Here there is positively evidence of no act 
except the payment of taxes upon the slaves, claiming them as 
their own. This is not sufficient. It is a circumstance which, 
vdth others, will show the possession adverse. But the mere 
fact that one co-heir pays the taxes will not ripen by length 
of time into title to the property. If there had been evidence 
to authorize the charge of the court, which was upon the pre- 
sumption that there had been public and notorious acts of own- 
ership on the part of the defendants, the judgment must have 
been sustained. But there seems to have been no other act ex- 
cept the payment of taxes; and if the property was left by 
plaintiff wiUi defendants, under circumstances (as seems prob- 
able from the language of the statement of facts) which would 
exclude the presumption that the defendants intended to claim 
exclusively, or at least, that the plaintiff could have reasonably 
imagined that they wouTd set up such pretension, then certainly 

1857.] Wheeleb v. HoLua 86S 

the eridenoe iras not rafficient to wanaat the farj in finding 
their yerdiot. 

To prevent misappirehenaion, it may be obeerred thai there are 
many acta hj a tenant in oommon which will immediately give 
etaaaenej to the statnte of limiti^tiona; a8» for instance, a par- 
ehaaer from a tenant in oommon entering under a recorded deed, 
or notorionaly claiming the whole of the property, and other 
acts so hostile and repugnant to the claim of other co-heirs as 
to show the possession to be not as co-herr, bat in an adverse 
right: Cryer t. Andrews, 11 Tex. 170; Portu t. EiU, 8 Id. 273. 

Upon the whole, fhoogh the neglect of the plaintiff to claim an 
account and division for nearly four years is a presumption of 
abandonment of his rights, yet as the property was left by him 
with those who might in a certain sense be regarded as standing 
in the relation of parents, and there being no evidence of any 
such acts of ownership as would by reasonable diligence apprise 
him of there being an adverse claim, and as the defendants did 
not take the possession, but they came into it by the voluntary 
act of plaintiff, reposing, as we must suppose, a high degree of 
trust and confidence in their fidelity, and just regard to his 
rights, we must hold the verdict unwananted by the evidence; 
and the judgment is therefore reversed and cause remanded. 

Beversed and remanded. 

rosB —K MT or TivAHv Of Coioiov, wBiv Avfusi «o Oo-oirAais, Avn 
Wmnr vov: See PM^pt v. Cfngg^ 86 Am. Dm. 158; HaH v. Gregg, Id. 106} 
Wa$aon v. Gregg, Id. 176; Grqfm ▼. ToUmkam, 87 Id. 472; Parker y. Ptp- 
frkiore. Id. 121 ; Boifos v. HamOUm, Id. 600; RAeha^ik v. JMertiom 88 Id 
148; CWeni V. ifoion, 48 Id. 282; MerMikY. Andrt9.i6U.tMi Bmmum 
r.Jamee, Id. 286; Jam* Y.WeaOienlbee, 61 Id. 668; Tkamfuon v. Mawh/kmeg, 
62 Id. 176; Marcgr. SUme, 64 Id. 786; Timmg v. Adatne, 68 Id. 164; Peek 
V. ChrpmUer, 66 Id. 477; Gceeom v. DamaldeM, 68 Id. 7^ and noteik To 
ttie point thfti the poMeMkm of one oo-heir innree prima /aek to the benefit 
of ell; tbet he oennot avail himaelf of the atatote of Umitetione aa egainat hie 
eo-heixBy nnlaaa hie poaaoaaton ia openly advefae, and that mareeeta of owner* 
ehiparenot enffidenti the prindpal oaae ia dted in Whcf v. iVrfw, 28 Tex. 

Whbelbb V. HOLLliEL 


Oioanov nr SzAniaiiT or Faoib oh Aftsal or iMrosxAar Dooamn^ 
leaving it nnoeriain what the evidenoe waa below, wiU not prednde a 
reviaion of the judgment, where the opinion ol the appeUste ooort pio* 
oeeda on gronnda which render the miming OTidenoe ImmateriaL 

iooonnoN to PsBSONALrr is Govnunm bt Law or Bomanji of the 
owner at the time of hia death. 

864 Wheeler c Uollis. [Texaa» 

OviBDiAir MAT Changs Waxd*h Domicilx bt Absoohdiiio to Dbhufd 
GEBDXTOBly leaving hia guarduuuhip anaetUed, he being the atep-ftttfaer 
of the ward, and the ward being a member of hit familyy if there is no 
fntnd as againrt the ward. 

Appeal from a jadgment for the plaintiff in an action to re* 
eoTer certain slayes. It appeared that the slaves were formerly 
the property of one Elizabeth Hamilton, who died intestate, 
under age, and unmarriedy in Arkansas. She formerly resided 
in Mississippi, with her mother and her step-father, one Watson, 
who was her guardian. Watson removed with his family, in- 
dading his ward, from Mississippi to Texas. There was evi- 
dence tending to show that he left Mississippi to avoid paying 
liis debts. It seems, also, to have been proved that he left his 
guardianship accounts unsettled. A record of the probate court 
of the proper county, being his inventoiy as guardian, was in- 
troduced in evidence below, but was omitted from the statement 
on appeaL A few years after settling in Texas, Watson removed 
to Arkansas to escape the payment of his debts. His ward 
died there, and his wife, the mother of his ward, died a few 
years afterwards, either in Texas or Arkansas. Watson retomed 
to Texas, and sold the slaves in question to the defendant 
The plaintiff claimed them as guardian of the half-brotber and 
sisters of Elizabeth, the children of Watson. The question was, 
whether the laws of Mississippi or those of ArkansaB should 
govern the succession of the property in question. If the 
former governed, the plaintiff must recover; if the latter, the 
defendant must recover. The case turned upon the question 
whether the guardian could effect a change of domicile of the 
ward by leaving Mississippi as he did. The charge of the court 
was in favor of the plaintiff. The purport of it is sufGleiently 
stated in the opinion. The plaintiff having recovered judgment, 
the defendant appealed. 

O. M. BoberUf for the appellant. 

Henderson and Jonea, for the appellee. 

By Court, Wheelxb, J. It is objected, on behalf of the ap- 
pellee, that the appellant is not entitled to a revision of the 
judgment on the merits, because the statement of facts is imper- 
fect. It however appears by the statement of facts what the 
missing document was; and in the view we entertain of the 
main question in the case, nothing which it could contain — ^being 
but an inventory rendered to the court in Mississippi by the 
defendant's vendor as guardian— could iK>S8ibly have any infla- 

1837.] Wheeler v. Hollis. 865 

enoe upon fhe decision of the case. If it were nncertain what 
the evidence was, aod we could not certainly know that its pres* 
ence in the statement of facts would not affect onr opinion of 
the case, the objection would be entitled to weight. But as our 
opinion proceeds on grounds which render the eyidenoe imma- 
terial, giving the appellee the benefit of eyerything it can be 
supposed to contain, we do not think its loss should deprive the 
appellant of the right to have the judgment revised. 

The main question in the case is, whether the removal of 
Watson and wife, with his ward, Elizabeth Hamilton, from 
Mississippi to Texas, and hence to Arkansas, effected a change of 
the domicile of the ward; for it is not questioned, and is undeni- 
able, that the law of her domicile at the time of her death must 
regulate the suooesdon to her personal property. Judge Story, 
in his Conflict of Laws, has examined the authorities on the 
question whether a guardian has the power to change the domi- 
cile of his ward from one countiy to another, so as to change the 
rule of succession to his personal properly in case of his death, 
at some length; and from his citations, it appears that, while 
there is a difference of opinion among foreign jurists, the weight 
of authority is in &vor of thiB power, if the change was without 
fraud. There certainly is a great weight of authority in favor of 
such a power in the parent; though some foreign jurists take a 
distinction between the case of a change of domicile by a parent 
and by a guardian, and while they admit the right in the former, 
deny it to the latter: Story's Confl. L., sees. 505-^507, and notes. 
'' The same question," says Judge Story, '' has occurred in Eng- 
land; and it was on that occasion held that a guardian may 
change the domicile of his ward so as to affect the right of suc- 
cession, if it is done hcnafide and without fraud:'' Id., sec. 606. 
The case referred to i9 Podnger v. TVightman^ 8 Meriv. 67, decided 
by Sir William Grant. The case was one of the first impression, 
it seems, at that time, in England. It was argued with great 
learning by Sir Samuel Bomilly and Mr. Swanston in favor of 
the power of the guardian, who was the mother, a widow, act 
ing sui juris and for her children; and her power of effecting a 
change of domicile was sustained. From the ojiinion of the mastez 
of the rolls, however, it may be plainly inferred that if it had ap- 
peared that it was with a fraudulent view to the succession of her 
children and wards that the guardian had changed her abode, the 
decision in that case would have been different. (See this case 
vsbrred to by Lord Campbell in the house of lords in Johnstone 
T. BeatUs, 10 01. & Fin. 188; and see the opinion of Lord Cotten* 

3GG WuEELER V. HoLLia. [Tcxasi 

ham, to {he e£Eect that an infant may be taken out of the limits 
of the jurisdiction by permission of the court of chancery: Id. 
106y same case.) Judge Stoiy says the doctrine of the case of 
Potinger v. Wightman^ 8 Meriv. 67, has been recognized as the 
true doctrine in America. Neyertheless, he questions the power 
of the guardian: Story's Confl. L.» sec. 606, and notes. 

It is to be regretted that the question is left by the authorities 
in so mnch doubt and uncertainty. The opinions of American 
courts, as far as we have seen, appear to favor the power of the 
guardian, though the cases are not precisely in point to the pres- 
ent: Holyoke y. Haakina, 5 Pick. 20 [16 Am. Dec. 372]; CuUs y. 
Haakina, 9 Mass. 643; Ouier v. (/Daniel, 1 Binn. 349, in note; Up- 
ton y. florthbridge^ 16 Mass. 239. We will conclude our exami- 
nation of authorities by reference to the opinion of Chief Justios 
Gibson in School Diredora y . James, 2 Watts & S. 668 [37 Am. Dec. 
626]. He considers the civilians equally divided upon the ques- 
tion whether a guardian or tutor stands in the place of a parent, 
and has the same power as a father or mother, sui juris, to change 
the domicile of a child; and concludes that the English and 
American authorities support the affirmative, and would be amply 
sufficient to tarn the scale of authority, "were it not for the 
powerful doubt thrown in on the other side by Mr. Justice 
Story." He thinks there are grounds for this doubt, and rea- 
sons thus: ''No infant who has a parent «ui juris can in the 
nature of things have a separate domicile. This springs from 
the status of marriage, which gives rise to the institutions of 
families, the foundation of all the domestic happiness and virtue 
in the world. The nurture and education of the ofispring make 
it indispenable that they be brought up in the bosom and aa 
a part of their parents' &mily; without which the father could 
not perform the duties he owes them, or receive from them 
the service that belongs to him. In every community, there- 
fore, they are .an integral part of the domestic economy; and 
the family continues for a time to have a local habitation and a 
name after its surviving parent's death. The parent's domicile, 
therefore, is consequently and unavoidably the domicile of the 
child. But a ward is not naturally or necessarily a part of hia 
guardian's family; and though the guardian may appoint the 
place of the ward's residence, it may be and usually is a place 
distinct from his own. When an infant has no parent, the law 
remits him to his domicile of origin, or to the last domicile of hia 
surviving parent; and why should this natural and wholesome 
relation be disturbed by the coming in of a guardian, when a 

1857.] Wheeleb v. HoLua 367 

chaDge of the infanf g domicile is not necessary to the aooom- 
plishment of any one purpose of the guardianship?" But waiv- 
ing the decision of the questioUi and granting the guardian may, 
for some purposes, change the ward's domicile, the judge says, 
applying the law to the case then before the court: " Yet if he 
may not exercise the power purposely to disappoint those who 
would take the property by a particular rule of succession (and 
nearly all agree that even a parent cannot), how can he be 
allowed to exercise it so as obviously and unavoidably to injure 
the ward himself?" And it was on the ground here suggested 
that the decision turned. 

Where an infant has no parent — the ease supposed by the 
judge — ^there may be much force in the reasoning; and there 
certainly is great justice in the sentiment and force in the argu- 
ment in support of the authority of the parent. But may not 
the same reasoning be applied, and with equal propriety and 
force, to support the right of the surviving mother who has 
married the second time, eifpecially where the nurture and edu- 
cation of a daughter is concerned? Should her marrying again 
depriye her of the right to have the custody, care, and super- 
vision of the education of her infant children, or them of ma- 
ternal sustenance and protection ? Is it the less indispensable 
(in the very appropriate language of the learned judge) that 
the infant children, daughters especially, be brought up in the 
bosom and as part of the family of which the mother is one 
of the united head, vrithout which she could not perform the 
duty she owes them, or receive from them the homage to which 
she is entitled? Maternal care and instruction are not the 
less her duty and their right in consequence of her second 
marriage. They are no less a part of the domestic economy, 
and equally entitled to membership in her family. There can 
be no reason why her domicile, the domicile of her choice, 
should not be theirs, if she and her husband unite in making it 
such. When an infant has no parent, the law, it is true, remits 
him to his domicile of origin, or to the last domicile of his parent. 
But when he has a surriving mother, it is difficult to perceive 
the justice or propriety there would be in not permitting her to 
make her domicile that of her children. It may be different to 
some extent in European society, but in the society of this 
country, the habits and sentiments of our people, our ideas of 
domestic economy, would be opposed to denying the mother, 
upon her second marriage, the custody of her infant children. 
In older communities, it may not be unusual for children who 

368 Wheeler v. Hollisl (TezaH^ 

have parents to have others appointed their guardians; and then 
it may be tml/ said that the ward is not natorallj or necessarily 
a part of the guardian's family; and so it may be said where the 
ward has no parent. But in this oonntry, it cannot be said, I 
apprehend, in general, where the ward has a mother whose hus- 
band is the guardian of her child. There may be cogent reasons 
why, for the benefit of her ward, the mother may wish to change 
her abode and that of her ward. Immigration here from our 
older sister states is the natural order of things; and mothers, 
who haTe married a second time may have as good reasons 
for changing the domicile of their children for their mutual 
advantage as others. If they, or their husbands, are the guar- 
dians of their children, it is difficult to assign any reason in 
support of the right of parents to change the domicile of their 
children which would not apply to them, where for the mutual 
advantage of both parties they desired the change. It is ad- 
mitted that a widow, sui juria^ may change the domicile of hei 
children, she being their guardian. If she should marry after 
aiaking the change of domicile, the law would not remit the 
children to her former domicile. Then why should their domi- 
cile be unalterably fixed by the fact of her marriage, when she 
may many with a view to the same change of her place of 
abode which she would have e£Eected had she remained a vridow ? 
There may be more reason to deny the right of a guardian to 
change the domicile of his ward in governments which deny 
the right and power of expatriation, and the obligation of alle- 
giance is held to be perpetual, than in this country, where the 
right of expatriation is admitted. There doubtless is good rea- 
son and sound policy in requiring that the change be made 
bonajide and without fraud; and holding the change ineffectual, 
where the guardian should change the domicile of a child who 
was sick, with no other apparent object than that of removing 
him from a place in which, according to the law of succession, 
the guardian would not sucoeed to the child's estate, to another 
place which admitted the guardian to such succession. Such a 
removal may be justly deemed a fraud upon those who would 
have succeeded, if no removal had taken place. So if the re- 
moval be purposely to the detriment of the interest of the ward, 
or to enable the guardian to incumber or convert to his own 
use the property of his ward, it may be deemed fraudulent as 
to the ward himself, and may justly be held not to effect a 
change of his domicile. And to this effect, the case of the 
School DirecUra v. James. 2 Watts & S. 672 [87 Am. Dec. 625], 

IH57.1 Wheeler v. Mollis. Si»9 

ill which the opinion of Chief Justice Oibson (from which I 
I iuve quoted at so much length) ivas delivered, is a strong au- 
thority. The court maintain decidedly that whatever may be 
the power of the guardian over the person and property of the 
ward, he cannot exercise it so as to injure the ward himself. 
The yeiy Pud and purpose of his office is proteotiony and there 
is no imaginable case, the court say, in which the law makes it 
an instrument of injury by implication. Where the guardian 
acts fairly and within the scope of his authority, the ward must 
bear the consequences, because he must bear those risks that 
are incident to the management of his affairs; but that is a differ- 
ent thing from burdening him with a loss as a legal consequence 
of the relation. And accordingly it was held, in a suit free from 
fraud, that the guardian could not change the domicile, so as 
to subject i!he property of the ward to liability for taxation in 
the domicile of the guardian. If the law will not permit the 
office of guardian to become the instrument of injury by any 
possible legal consequence or implication, much less will it bv 
the intentionally wrongful, fraudulent, or unauthorized act of 
the guardian. He can acquire no right by such fraudulent oi 
unauthorized act. 

But the charge of the court made the removal of the guardian 
from the state of Mississippi to avoid the payment of his own 
debts, coupled with the fact of his failure to settle his guardiau- 
f$hip with the probate court before his removal, such a fraud, 
per 86, as to prevent a change of the domicile of his ward. And 
the effect of this charge cannot be said to have been el]';u;ed by 
the instruction given at the instance of the defendant, with tbo 
subjoined qualification. The jury were still left at liberty to 
find that there was no change of domic lo in contemplation of 
law, if the guardian left Mississippi to avoid the payment of his 
^ebts, and without settling with the probate court; or if there 
were •* other facts going to show a wrongful intent," without 
being informed in what the wrongful intent must consist, other- 
wise than as they might deduce it from the preceding portions 
of the charge, which, taken altogether, was not quite consistent. 
The jury would very naturally infer from the charge that if the 
guardian had acted in fraud of his own creditors, in effecting a 
change of domicile, they might find that the domicile of the 
ward was not changed by the removal, although the conduct of 
the guardian may not have been fraudulent as to those entitled 
to succeed to the property of the ward in cfuse of her death, or 

iiaudulent or injurious in relation to the ward herself. As 

370 Wheeler v. Hoixia [Texaa, 

there was evidenoe from which the infeienoe might be veiy 
readily drawn that the guardian had acted fraodnlentl j as to his 
creditors, the charge of the court in this respect was calculated 
to mislead. Its tendency as a whole, we think, was to mislead 
upon this point; and for that reason it must be held to be erro- 
neous. The failure to account, as guardian, to the court in 
MissisBippi, was a circumstance which might be looked to in 
connection with others to ascertain the purpose of the guardian; 
so might his after management and dealing with the property of 
his ward; but his failure to give an account in Mississippi uf hia 
guardianship cannot be deemed condusiye evidence of a change 
of domicile purposely to defraud those entitled to the succes- 
sion, or that in its consequences it was intentionally or necee- 
sarily injurious to the ward herself. Although it may be true 
that the guardian left Mississippi to avoid the payment of his 
debts, that could not be otherwise mat.ftrial than as showing 
that the primary object he had in view was not the benefit of his 
ward. It does not follow that there was an intention to defraud 
her, or those who might succeed to her rights of property, or 
that the removal was injurious to her. That fact, and the cir- 
cumstance of the failure of the guardian to account, were not 
sufficient, in themselves, to prevent a change of the ward's dom- 
icile; yet the charge of the court was calculated to induce that 
belief on the part of the jury; and as it may have been the cause 
of their verdict, the judgment must be reversed and the cause 
Reversed and remanded. 

RoBSBTS, J., did not sit in this case. 

SnooissioN TO Pkbsonaltt is Govzbned bt Law of Dbojuoiit's Domz- 
ciLX AT Dkath: McGoUom v. Smithy 33 Am. Deo. 147; ChwriUon v. Rkkardt^M 
Eh^r, Id. 563; QoodaU ▼. MarshaU, 35 Id. 472; Vroom ▼. Van Hone, 42 Id. 
94; Lawrence ▼. KiUridge, 56 Id. 385; HainUm ▼. HaJknUm, 61 Id. 630, and 
notes thereta 

Guardian's Ck>NTBOL ovxb Domioilb of Wabd: See School Directon v. 
Jame», Zl Am. Dec. 525; Hitstand v. Kuns, 46 Id. 481; OrimmeU ▼. Wither- 
ington, 63 Id. 66, and notes. The principal case is cited npon the point ■• to 
changing the domicile of a minor to change the law of snccession as to hit 
proper^, in Trammdly. TramnmeUf 20 Tex. 417. 

Itiol.] Silvan v. Coffee. 871 



an innocent parchaaer without notice. 
[Hsmnonoir Whioh Pbbgludes Jubt vbom Ikquxbiho nrro Fact of 
FoBOKD Exicunov is Erboksoub. Proof that defendant had knowl- 
edge of or was concerned in the oommiBaion of the forgery makes no 
difference. A forged execntion is abaolately void, and not merely Toid« 

The facts are stated in the opinion. 

Chandler and ISimer, for the appellant. 
8. Ibrd^ for the appellee. 

By Conrt, Hemphill, C. J. This was a suit to recover town 
lots, which the defendant, Co£Eee, claimed under a sheriff's sale 
upon an execation issned on a judgment rendered by a jnstice 
of the peace. 

The case was before this conrt at a preyions term, sub nom. 
Coffee T. Silvan, 15 Tex. 364, and having been remanded, the 
paintiff by amendment charged that the execution was a forgery. 

He attempted to support this by evidence, and asked an in- 
Btmction to the effect that if the jury from the evidence believed 
the execution to be a forgery, and not issued by the justice or 
his authority, they should find for t